When we last left our heroine, Hilda Solis, the Secretary of Labor, she faced uncomfortable and still-unanswered questions about why her agency shrinks from performing its statutory duty to determine labor shortages while playing mountebank to American and foreign workers and U.S. employers. The source of the bureaucratic trickery, we learned, is the “labor certification” process, a specious test of the labor market now known as PERM.

As with any good ruse, PERM began with a promise of performance, an assurance that the new system, in most cases, would be faster than its predecessor. A new online system with unexplained, behind-the-scenes technical prowess — the Department of Labor (DOL) assured us — would process cases quickly and in a more “user-friendly” way: “[An] electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed [69 Fed. Reg. at p.77328, 77358 (December 27, 2004)].”

As the Congressional Research Service (CRS) reported, PERM replaced a two-track system (the fast track known as “Reduction in Recruitment,” or RIR, and the slo-mo track dubbed “Standard Processing”). RIR, when it sizzled, produced labor certifications in under a month, sometimes in just a week. Standard Processing took anywhere from two to five years and in some cases, as CRS noted, six years or more. PERM introduced a three-track system: (1) a computer-generated decision available in 45 to 60 days, (2) an “Audit” process, and (3) “Supervised Recruitment.”

While the DOL’s latest self-appraisal for FY 2009 grades the “data quality” of the foreign labor certification program as “Very Good,” the DOL missed its goal of a six-month process (from the filing of the application to agency decision) by a wide margin: “Only 19 percent of permanent labor certification program applications were processed within six months.”

Although computer-generated PERM decisions are supposedly issued within the 45-60 day window, the DOL on the “PERM Processing Times” tab of its iCert Portal says wait “three months” before making an inquiry on a delayed case (thereby generating skepticism about the reliability of the published statistics). Moreover,a processing backlog has developed (of unreported dimension), for which DOL is targeting a “goal for FY 2010 . . . to reduce the backlog by 50%.” Meantime, DOL cases designated for “Audit” take two years and appeals are completed in two-and-a-half years. Unlucky applications that must undergo Supervised Recruitment take an unknown, but longer period, which the DOL apparently lacks the courage to disclose on its PERM Processing Times tab.

Worse yet, the DOL’s PERM rules are as real or fictional as Potemkin’s Village:

This DOL-devised recruitment effort is unlike any in the real world of business. The employer must use print ads despite the overwhelming predominance today of internet-based recruiting. The required “prevailing wage” is often inflated because it must be divined in a square-peg/round-hole process from an online DOL database listing fewer than 2,000 occupations, dumbed-down for bureaucratic convenience from the previous Dictionary of Occupational Titles, a compendium of over 40,000 job descriptions. The employer must consider as qualified for the advertised position any job applicants (though lacking the minimum requirements) whom the employer could train in a “reasonable” time. Also up for mandatory consideration are applicants who are clearly over-qualified for the job even though experience has taught that many over-qualified new hires grow bored quickly and soon resign. These are but a few of the deviations from real-world recruiting concocted by the DOL. [Source: “U.S. Labor Department to Immigration Lawyers: You’re All Just Potted Plants,” by Angelo A. Paparelli and Ted J. Chiappari. Footnotes omitted.] [For additional blog postings on PERM’s failings, see here, here, here, here, here and there.]

Potemkin Village is an insufficient descriptor for the PERM process. The “village” allusion seems too low to the ground. Tower of Babble better describes the hollow edifice that the DOL has erected to camouflage the agency’s shirking of its statutory duty to declare labor shortages. Page upon page of dense regulations were not enough to answer all the questions that PERM has raised. At last count, the DOL has supplemented its regulations with:

• 10 sets of equally dense FAQs,
• A 33-chapter pre-PERM Benchbook issued as a second edition in 1992 by the Board of Alien Labor Certification Appeals (BALCA), with occasional supplements (that still contains post-PERM legal concepts that must be mastered),
• Scores of BALCA en banc and federal court decisions spanning the period from 1988 to 2006, and
• Recent decisions, described by my colleagues Cyrus Mehta and William Stock, adding more mud to an already opaque process, identify how humanly imperfect DOL’s “letter-perfect” PERM system has proven to be, and require time-consuming case remands from BALCA to the DOL Certifying Officer (or start-from-scratch employer do-overs) that will only enlarge and prolong the backlog.

There should be little surprise that the DOL’s concoction of the labor certification process has resulted in what armchair psychologists might describe as passive-aggressive behavior. The DOL’s professed mission says nothing about the important national interest in fostering the economic benefits of immigration:

[DOL] fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements. [Bolding added.]

Hilda and her predecessor (Elaine Chao) have been wearing the same PERM since 2004, and it’s become even less attractive with the passage of time. Please, Hilda, get a new ‘do. Start reporting on the “changes in employment” your agency has been “tracking.” Scrap that hideous PERM and start announcing labor-shortage occupations, as immigration law requires.

Hilda Solis — the Secretary of Labor — hails proudly from immigrant stock. She understands the suffering immigrants endure for a chance at the American Dream. She also knows the importance of ensuring that U.S. workers are protected and treated fairly. I wonder how she continues to tolerate the abuse of American and immigrant workers, and of U.S. employers, perpetrated in her name under the Labor Department’s PERM program.

An acronym whose official name sounds at once Orwellian, shocking and bureaucratic, PERM stands for Program Electronic Review Management. It is the exclusive method that the Department of Labor (DOL) devised to eliminate a backlog of several years in a longstanding program of labor-market testing (known as a “labor certification”). With a labor certification in hand, a foreign citizen officially completes the first step in an elaborate and lengthy process culminating, if successful, in the grant of an employment-based green card.

The Immigration and Nationality Act (INA) — at § 212(a)(5) — says in bass-ackward and double-negative fashion that no foreign worker is admissible to the U.S. as a permanent resident unless the Secretary of Labor determines that no U.S. worker is willing, able, available and qualified to fill a job that a U.S.-based employer wants the foreigner to fill. Thus, § 212(a)(5) says that the hopeful foreign worker is inadmissible to the U.S. unless Secretary Solis is satisfied that at least one statutorily suitable worker in all of America cannot be found.

This law, as written, puts the duty of action and decision squarely on Ms. Solis’s shoulder. It imposes no burden on the foreign worker, on any U.S. worker willing to apply for the sponsored job, or on the employer. The perverse ingenuity of DOL bureaucrats, however, led the agency long ago to craft a method (now embodied in the PERM program) that unjustly transfers most of the onus of action under § 212(a)(5) from the DOL to the employer, to the foreign national and — most cruelly — to hapless U.S. workers who are duped into applying for a job that in most instances is already filled.

Under PERM and its predecessors, the DOL has illegally foisted on each of these parties various duties that fall squarely within its area of agency expertise, duties that it could do better and more quickly itself:

• The employer is commanded to prove a negative, i.e., that no statutorily suitable worker is available. The employer must also show that the particular job is open in good faith to any U.S. worker who meets the employer’s minimum requirements. (The good faith requirement in practice eliminates virtually all foreign entrepreneurs who set up their own U.S. companies since the DOL presumes that every entrepreneur will act in bad faith to secure a labor certification.)
• The foreign worker is ordered to prove by prior education, training or experience, that she satisfies the employer’s minimum job requirements. (The DOL’s minimum-job-requirements rule effectively bans merit-based hiring since any lesser-skilled U.S. worker who surfaces will cause a more-qualified foreign candidate to be denied a green card.)
• The U.S. worker — treated the most shabbily by DOL of all — is induced to act, unknowingly, as a naïve stooge. Under the PERM (DOL-work-avoidance) scheme, U.S. workers are “punk’d” into applying for jobs that in most cases they have no chance of filling. They are used — at DOL insistence — as guinea pigs merely as a means for the employer to prove to Secretary Solis’s satisfaction that a good faith test of the labor market has been conducted. The DOL does not require (indeed, it lacks legal authority to demand) that the employer hire any minimally qualified U.S. worker who applies for the job. All that happens if the employer “fails” the labor market “test” (meaning that a suitable worker applied who met minimum requirements of the job) is that the foreign worker will not be allowed to move to the next stage of the employment-based green card process under sponsorship of this employer at this time.

The bureaucratic charade known as PERM would be unnecessary if Secretary Solis were to instruct her minions to perform their statutory duties. If DOL were to identify more jobs for which the agency believes there are insufficient numbers of U.S. workers — so-called “shortage occupations” that satisfy § 212(a)(5) — the agency’s illegal burden-shifting to private parties would no longer be necessary. DOL defenders have claimed, however, that identifying shortage occupations is impossible. If that is so, then how did the agency determine under its Schedule A authority that jobs for physical therapists and registered nurses go begging for applicants and thus are exempt from the labor-market testing requirements? Congress certainly believes that DOL can and should identify additional shortage occupations since it gave DOL authority in 1990 (which the agency has not used) to expand the shortage list under the Labor Market Information Pilot program.

I suspect the reason for the Labor Department’s labor-avoidant reluctance to ferret out and declare shortage occupations is that announcing such shortages inevitably produces political heat. At a time of historically high unemployment, DOL likely finds unwelcome the prospect of being in the middle of a Dodge Ball game where U.S. worker advocates, labor unions, employers, business organizations, proponents of immigration and the media — each disagreeing with some of the Labor Department’s worker-shortage declarations — pitch painful spheres at the agency. Fear of a shellacking, however, is no excuse. Secretary Solis, together with the DOL technocrats who devised PERM, cannot continue to shirk the legal duties they voluntarily accepted when taking their oaths of office.

DOL cannot morph statutory duties that the agency finds distasteful into extra-legal mandates on employers and aspiring green-card holders while perpetuating a con-game that gulls employed and unemployed U.S. workers into applying for jobs which they have little hope of getting.

* * * * *

Readers of this already too-lengthy post, just like silent film audiences viewing The Perils of Pauline, must wait till next time for our cliffhanger to end and find out what happens in the final episode of this electrifying and shocking bureaucratic drama, The Perils of Hilda and Her PERM.

I had intended to write again about the DREAM Act, given that it will be up for a vote during the lame duck Congress, probably within the week. Another DREAM post, to follow my many similar postings, would be more time-sensitive than ever in view of an analysis by Lamar Smith (incoming head of the House Judiciary Committee). In a recent Washington Post op-ed, Rep. Smith minimizes the impact of the Hispanic vote; thus, his track record as an immigration opponent makes the prospect of DREAM’s enactment in the next Congress chimerical, if not comical.

The brave DREAMers in this video made me want to blog on the kind of American Exceptionalism that does not come off as arrogance, the type that breeds courage in the face of impossible odds, the kind that causes innocent out-of-status youths, swept up by the mistakes of their parents and the hard-heartedness and fears of many Americans, to demand their civil rights by protesting in front of an ICE office (in Arizona, no less)! This “SLAM poem” by a DREAMer tells the story of Immigration Exceptionalism in yet another, also compelling, way.

I then planned to expand my riff on Immigration Exceptionalism by asking why French scientists and economists prefer the United States over their native land. I’d also blog about two recent items from the Wall St. Journal — one calling DREAM “A Worthy Immigration Bill,” the other reporting on a VC-funded CEO from Slovenia whom USCIS denied an extension of his work visa status and who now must run his American business from outside the U.S. — and contrast these to the 10-pointed disinformation of Sen. Jeff Session who opposes DREAM with flat-out lies and extremist views.

But then erupted Cablegate, the Wikileaks release (in stages over several days) of years and years of U.S. State Department cables, and another form of Immigration Exceptionalism — State’s secrecy and arrogance in visa matters— came back to me. This Congressionally-authorized dark side of the immigration process has bothered me for all of the 30+ years I’ve practiced immigration law. A Tweet of Matt Yglesias, retweeted by the Washington Post‘s Ezra Klein, epitomized the problem:

Routinized overclassification is bound to create a brittle system vulnerable to mass leaking.

The “[r]outinized overclassification” system that turns immigration-related records held by State into government secrets is authorized by Immigration and Nationality Act § 222(f), which provides:

(f) The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, 1a/ except that–

(1) in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such records is needed by the court in the interest of the ends of justice in a case pending before the court.

(2) the Secretary of State, in the Secretary’s discretion and on the basis of reciprocity, may provide to a foreign government information in the Department of State’s computerized visa lookout database and, when necessary and appropriate, other records covered by this section related to information in the database–

(A) with regard to individual aliens, at any time on a case-by-case basis for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States, including, but not limited to, terrorism or trafficking in controlled substances, persons, or illicit weapons; or

(B) with regard to any or all aliens in the database, pursuant to such conditions as the Secretary of State shall establish in an agreement with the foreign government in which that government agrees to use such information and records for the purposes described in subparagraph (A) or to deny visas to persons who would be inadmissible to the United States.

To many a visa applicant’s shock and dismay, State has routinely used § 222(f) as a basis to deny a copy of one’s own visa applications to the applicant and his or her legal counsel. Coupled with other provisions that give U.S. consular officers arbitrary (and too-often abused) powers over the fate of visa applicants, § 222(f) has also permitted the immigration workings of State to be shrouded in darkness — a darkness that is allowed to hide ethnic prejudice. Witness one 1979 cable from the U.S. Embassy in Tehran discussing the “cultural and psychological qualities” of Iranians:

Perhaps the single dominant aspect of the Persian psyche is an overriding egoism. Its antecedents lie in the long Iranian history of instability and insecurity which put a premium on self-preservation. The practical effect of it is an almost total Persian preoccupation with self and leaves little room for understanding points of view other than one’s own. Thus, for example, it is incomprehensible to an Iranian that U.S. immigration law may prohibit issuing him a tourist visa when he has determined that he wants to live in California. [Emphasis supplied.]

In America, we’d say this is an example of the pot calling the kettle black. The Persians would phrase it differently but with the same sentiment: “The garlic said to the onion: ‘you stink!'” Malcolm X might say, were he alive today, that the “chickens [have come] home to roost.”

The point here is not that WikiLeaks should be lauded for revealing State secrets. The point instead is this: State’s form of Immigration Exceptionalism permits “routinized overclassification” of secrets and of foreign citizens. It thereby helps create a “brittle [and vulnerable] system” which denies America the benefits of the other form of Immigration Exceptionalism, the one that allows home-grown foreign youth, French scientists, Slovenian entrepreneurs and innumerable other talented people from abroad to reinvigorate, replenish and economically strengthen our nation through their striving, risk-taking and innovation.

John Tyner, a San Diego software engineer and newly minted American folk hero, faces an $11,000 civil-disobedience fine for refusing an intimate groping, dubbed by Orwellian bureaucrats as an “enhanced patdown,” that Hillary Clinton would herself refuse. The man who threatened a citizen’s arrest if his “junk” were touched epitomizes an aroused populace, even including flaccid Baby Boomers, who will no longer tolerate TSA inanity passing off as security at the nation’s airports.

Time was when Boomers, my generation, risked arrest in the face of unacceptable official conduct. Draft cards and bras burned. Marches and sit-ins dotted the nationscape. From the hottest campuses — Berkeley, Michigan, Columbia and Kent State — outbreaks of youthful protests erupted and spread furiously. But that was a galaxy far, far away.

Today, as Pogo predicted, we have met the enemy and he is us. My father, a principled rebel himself, envisioned this outcome. He would enrage me by repeatedly noting that these protests were nothing more than youthful exuberance, a “phase” that would peter out. If (as I hope) he’s moved on by now from Purgatory to a more hospitable celestial level, Dad’s no doubt looking down and smiling wryly.

A generation that screamed “Power to the People” and urged peace and love in place of war has become a cantankerous cohort of whiners and WIIFM (“What’s in it for me?”) turncoats. Sure, most of us today face hard and scary times — but times then seemed plenty fearsome and arduous too, with Tricky Dick’s finger hovering over the nuclear button, rioters burning our cities, and assassins downing our beloved leaders in rat-a-tat sequence. We still want devolution, but we’ve devolved to this: Keep your damned government hands off my Medicare and Social Security!

The time sure seems right for the Boomers to engage in adult conversations. No, not the type that Republicans chant and Jon Stewart unmasks. I speak instead of soul-searching colloquys on our bedrock values — the kind of debates we used to have in college dorms late at night.

One good place to start is the Dream Act — the previously bipartisan proposal that the GOP abandoned a few months ago in a defense authorization bill despite strong support from the military. The bill, which would legalize blameless out-of-status immigrant youth brought here by their parents, is a litmus test on our morality and our hope for the future. On one side, we pit an Arpaio posse of past-their-prime celebrities and their odious ilk. On the other, about a million young people tied to this country by lives lived nowhere else and legions of close American friends and family. The DREAMers are among the ones expected to fund the Boomers’ Social Security and Medicare payments. These innocents are certainly no less oppressed than the people for whom the Boomers marched in the Sixties.

The DREAM Act will come up for a lame duck vote right after Thanksgiving. I support the bill because “small ball” is better than a rained-out game, but share the concerns of a letter writer commenting on a DREAM Act article in the New York Times Magazine who fears “that it will become a military-recruiting tool for young people of color who can’t afford college.” (At least the California Supreme Court unanimously affirmed their right to in-state tuition.)

Even if proponents of functional immigration policies cannot now have the big enchilada (comprehensive immigration reform), in large part, because many of the Boomers abandoned their youthful values, we can at least pass the DREAM Act and follow a new POGO (the Project on Government Oversight). POGO is “a nonpartisan independent watchdog that champions good government reforms” and investigates “corruption, misconduct, and conflicts of interest [in order to] achieve a more effective, accountable, open, and ethical federal government.”

Think about that the next time your package is handled by a government official who may find the screening as distasteful as you do. Maybe then we can have an adult conversation on balancing security and enlightened self-interest in all matters involving Homeland Security, including immigration.

This week at a health care hearing a Tennessee state legislator unleashed a repulsive metaphor. He likened immigrants illegally in the country to “rats” who “multiply.” Once my feelings of outrage and disgust subsided, I began to ponder how quickly metaphors can electrify emotions and make reasoned discussion of immigration so difficult. Using Twitter, I quickly discovered sights, sounds and emotional fury over immigration in video form.

There are public service announcements, well worth watching, like “Do I Look Illegal? A Question for Arizona,” and “Week of Our DREAMs.”

There also are hateful shorts, camouflaged by song and humor, which perpetuate the false memes that slander immigrants as the root cause of all of America’s problems. Two are from Ray Stevens who briefly flirted with fame during the pre-PC era (1962) in his racist and sexist tune, “Ahab the Arab.” Stevens tries to restore his depleted career with two anti-immigrant music videos: “Come to the USA” (dedicated ostensibly but unconvincingly “to those hard-working American citizens who were born in other countries and chose to “Come to the USA” the right way!”) and “God Save Arizona” (which compares the 1942 Japanese attack on the ship, Arizona, moored at Pearl Harbor, to the Obama Administration’s lawsuit against Arizona’s SB 1070).

Stevens’ cinematic hate ditties — spewing falsehoods like a long dormant but finally erupting volcano — reminded me how easily and permanently film can warp the electorate’s understanding of immigration rules, for good, bad or manipulatively disinformational motives. I worry, for example, that the public’s view of marriage-based immigration law has been distorted by the Will and Grace episodes describing how Will’s gay friend, Jack, married Karen’s illegal housekeeper, Rosario, so that his “spouse” could escape deportation. Other popular lore on immigration and marriage — similarly misleading — have been on view in the movie Green Card, and more recently, The Proposal.

On the other hand, films can sear insights into the brain by way of the heart that are truthful and lasting. Two recent documentaries, The Other Side of Immigration, and The Invisibles – Hidden Journey Across Mexico, illustrate the power of film to foster understanding of the trauma endured by immigrants and the corruption, heartlessness or simple lack of awareness of some government officials who enforce the immigration laws. Still, one blogger’s “truth” is another person’s “propoganda.”

One of the best ways for each of us to understand film’s influence on the immigration debate is to watch as many films on the subject as time, energy and attention spans permit — preferably at group screenings where discussions follow. Here then are links to compilations of film titles and discussion materials:

REEL Images of Immigration

REEL Images of Immigration: Additional Films

Top Ten Immigration Films

Digital History: Immigration and the Movies

Interdisciplinary Immigration Workshop – Immigration Related Films and Other Media

MurthyDotCom Immigration & the Movies

Watch. Learn. Think. Understand. Change. America will be the better for it.

Don’t let the real “rats” — the heartless and the hurtful — win.

——–

After witnessing an election that may shift most of the country and the federal government sharply to the right on immigration reform, I desperately needed a diversion. Preparing for two upcoming speaking gigs filled the bill. On Monday, I will speak on immigration to the Roman Catholic clergy of Orange County, California, and a week later, on the same topic at an “Intensive Institute for Journalists” — “The Changing Face of America: Going Beyond the Rhetoric on Immigration,” hosted by the UC Berkeley Institute of Journalism.

As I began to consider how to offer insights of value to these very different groups, an unexpected letter arrived from New York. Federal Judge Kimba Wood, a onetime Clinton nominee for Attorney General who voluntarily withdrew from Senate consideration, had read my recent post and wrote to chide me. (It’s not every day that I receive a dressing-down from a federal judge.)

Judge Wood disabused me of the view that she should be lumped with other famous folks who “tripped on illegal immigration” and whose “hiring of an unauthorized foreign housekeeper, nanny or landscaper . . . [toppled or shook their] grand career plans.” Citing a contemporaneous New York Times article, Judge Wood noted that she complied with all reporting requirements, including disclosures to the Immigration and Naturalization Service, and that as a result, “there was nothing ‘unauthorized’ about [the judge’s] hiring of [her] son’s nanny” who “still works for [her] and has become a U.S. citizen.” Thus, she asked that before I ever include her among those who hired an unauthorized alien, I review her files.

While her nanny was indeed unauthorized for employment, the judge’s hiring of the woman was not unlawful. This is because it would be yet another eight months (with President Reagan’s signing of the Immigration Reform and Control Act of 1986) before Congress made it illegal for U.S. employers to hire workers while knowing that the individuals lacked work permission. Rather than quibble, and try to defend my technically accurate post, I now apologize to Judge Wood for casually lumping her into a category in which she did not squarely fit.

I also thank this jurist for helping me to put the current contretemps over immigration in historical perspective and to visualize a better denouement. Once before, as now, this nation was divided over immigration, yet a determined president (from California!), with help from humane pragmatists in Congress, passed a grand bargain that allowed for “legalization” of undocumented foreign citizens (it was never called “amnesty”) and sanctions for employers with guilty knowledge who hire them.

Thus, the post-election analyses this week on the fate of immigration reform in the Republican-bolstered 112th Congress seemed altogether too Washington-centric and myopic for my taste. Insiders from business groups and community-based, grass-roots organizations both offered uniformly glum predictions:

• Expect nothing on immigration from the lame duck Congress.
• With two unsympathetic Republicans leading on immigration issues (Lamar Smith likely heading the House Judiciary Committee and Steve King the probable heir to Zoe Lofgren in the Immigration Subcommittee), anticipate a unilateral focus on border enforcement and a near-total disregard for comprehensive immigration reform or improvements to the legal immigration system.
• Do not be surprised if anti-immigration laws are tacked on like stealth earmarks to omnibus or appropriations bills, or if immigration bills with no chance of passage are put up for votes merely to score partisan points in future attack ads.
• Plan to spend time educating new senators and representatives on the importance of immigrants and temporary workers to job creation and economic stimulus.
• Anticipate a paucity of hope on immigration reform until after the presidential elections.

My view from California, however, which (like other western states) bucked the red tide, is more optimistic. Hispanics resurrected Senate Majority Leader Harry Reid from virtually certain retirement, and balked at electing Meg Whitman whose seeming heartlessness on the fate of her undocumented housekeeper repulsed many Latinos. Moreover, Coloradans put to pasture Tom Tancredo, the poster-child of venomous xenophobia and anti-immigrant hate speech.

Thus, the Latino-offending vitriol never paid off (Reid’s opponent, Sharron Angle, told Hispanic students that “you look a little Asian to me;” Tancredo accused his opponent of supporting “sanctuary cities;” Whitman, speaking of her housekeeper, said, “she should be deported”).

While Republican senators on the Judiciary Committee recently asked the Obama administration to estimate the cost of deporting all unauthorized immigrants in this country — approximately $80 billion, according to a Los Angeles Times source from within the administration, this simply won’t happen. Currently, with a budget of $5.7 billion per annum (the most ever), Immigration and Customs Enforcement (ICE) can only remove each year about 4% of the 11 million undocumented (390,000 people yearly). Given that Republicans are all about deficit reduction, it would take over 14 years under current funding to deport them all.

The problem of fixing the immigration system will not go away. The voices of the growing Hispanic demographic will only grow louder (witness the confrontation between a DREAM Act supporter and Russell Pearce, proponent of Arizona’s SB1070, now newly elected President of that state’s senate).

The competitive position of the U.S. will continue to slide until improvements to the legal immigration system are made that enable innovators, entrepreneurs and strivers to grow the economy. As both parties endeavor to create jobs (and, with luck and effort, to restore a good measure of prosperity), the fear level of the American people will likely subside, and be replaced by our historic hospitality to immigrants in better economic times. The election, in my view, revealed how little patience the voters have with diddling, dawdling and dithering incumbents. The same electoral outcome will likely be repeated next time, unless politicians perk up and produce positive results.

Persistence and patience will both be necessary. The civil rights movement did not succeed in one fell swoop; neither will the effort to craft humane, pragmatic and economy-growing immigration laws.

I know now what I’ll say to the journalists. I’ll explain in detail the many ways that immigration in this country is in such an advanced state of decrepitude that it is not only eating at our soul, but also preventing us from achieving economic prosperity and social rapprochement — both of which are readily within our grasp. And I’ll urge them to shine the bright light of truth on our dsyfunctional system, while outing immigration hypocrites along the way.

I know now what I’ll tell the clergy. I will describe the challenges obstructing enactment of immigration reform laws, urge them to join the struggle, and pray with them the encouraging words of a Franciscan Benediction:

May God bless you with discomfort

At easy answers, half-truths, and superficial relationships,

So that you may live deep within your heart.

May God bless you with anger

At injustice, oppression and exploitation of people,

So that you may work for justice, freedom and peace.

May God bless you with tears

To shed for those who suffer pain, rejection, hunger, and war,

So that you may reach out your hand to comfort them

And turn their pain into joy.

And may God bless you with enough foolishness

To believe that you can make a difference in the world,

So that you can do what others claim cannot be done

To bring justice and kindness to all our children and the poor.

With Republicans salivating at the prospect of capturing at least one chamber in Congress, and President Obama and the Democrats in (perhaps temporary) retreat, the time seems right to reflect on how much trouble our broken immigration system has caused both parties and the country.

Repeatedly, on both sides of the partisan aisle, the hiring of an unauthorized foreign housekeeper, nanny or landscaper has waylaid or shaken a DC insider’s grand career plans. Recall the famous who tripped on illegal immigration — Lou Dobbs, Timothy Geithner, Mitt Romney, Bernard Kerik, Zoe Baird, Kimba Wood and Linda Chavez. Now add to the list Meg Whitman, candidate for California governor. Her campaign has been polling negative ever since news broke that she employed an unauthorized housekeeper for nine years (perhaps with knowledge of the worker’s illegal status). Meg now cries what seem like crocodile tears over the legally necessary (“the law is the law”) deportation of the person she once described as a “member of our extended family.”

You don’t need an Andy-Warhol quarter-hour of fame, however, to be blind-sided by the immigration laws. Even nondescript employers face serious problems because Congress structured the Immigration Reform and Control Act of 1986 (IRCA) badly from inception.

IRCA took a police function — the identification of foreign citizens with no right to be in the country — and outsourced it to America’s seven million employers. At the same time (E-Verify notwithstanding), the government failed to establish a fraudproof system of issuing and verifying identity documents and work permits. Just as bad, Congress crafted IRCA to punish employers who take their deputization as junior G-men too seriously by illegally discriminating against workers who look or sound foreign. IRCA also proscribes “document abuse” — a violation (quite different from the act Christine O’Donnell decries) involving an employer’s demand to inspect more or different papers than those the employee chooses to present.

Now the chickens are coming home to roost. With scant sense of regret or irony, the Obama administration — while proclaiming the need for Congress to grant legal status for the undocumented — has dramatically ramped up civil and criminal enforcement of the immigration laws against employers. At the same time, ICE maintains a trophy room of press releases on its website where the many employers taken down by IRCA are now mounted.

Even if owners seek to sell their businesses, IRCA may scotch the deal. Just as “the Supreme Court follows the election returns,” buyers of businesses are fearing the anti-immigration tilt to the right by the electorate and Tea’d off candidates. Although M &A activity is generally on the rise, venture capitalists, private equity firms and other business buyers are increasingly demanding that sellers show clean hands on immigration compliance. My latest New York Law Journal immigration column, co-authored with Ted Chiappari, “M & A Lawyers Beware: Immigration Risks Lurk in Your Next Deal,” reports on a new trend that will only put an extra IRCA squeeze on sellers.

Taking a page from the strategy that ICE pressured Wal-Mart into demanding of its vendors, buyers are insisting that an independent third-party with subject-matter expertise, typically an immigration lawyer or firm, conduct a full IRCA compliance audit and report to the buyer any findings of immigration deficiencies and corrective measures taken. As the NYLJ article notes:

An independent immigration compliance audit would be helpful in flagging correctable errors that seller should cure before the closing, and in quantifying the potential fine range that ICE could impose (for which seller should indemnify buyer). An independent immigration audit might also reveal more serious violations, or could well trigger a loss of a significant cohort of the seller’s workforce if I-9 reverification is required and workers either fail to show up for work or are unwilling or unable to complete the current version of the I-9 form by providing acceptable documents of identity and employment eligibility of the worker’s choosing [thus resulting in “silent” ICE raids] . . . .

Substantial potential exposure to fines and civil or criminal immigration penalties might make the deal less enticing to the buyer or might result in a negotiated reduction of the purchase price (or a clawback provision that allows the buyer to retrieve a portion of the purchase price if ICE [later] imposes monetary sanctions or the post-closing workforce proves insufficient to maintain the surviving entity’s business operations).

None of these maneuvers would be necessary if Congress were to restructure the process of employment verification. Ideally, the government would no longer outsource the function but instead directly confirm every worker’s employment eligibility and communicate a positive result by a secure online system so the employer could safely hire the individual. Alternatively, it should enact a bill known as the New Employee Verification Act (NEVA) which would outsource the duty to verify employment eligibility to specially trained third-party firms and thereby immunize the employer from liability. Regrettably, this bill is NEVA gonna happen, unless Congress also clears the path to legal status for the 11 million undocumented persons in our midst.

The current ICE strategy of triangulated IRCA squeezes and silent raids will only postpone that day of reckoning. The Obama Administration reportedly thinks that pushing ahead soon with comprehensive immigration reform (CIR) is a winning strategy that will put Republicans on the hotseat in 2012. Republicans, however, are raring for a fight to oppose CIR.

Meantime, the flawed-from-the-start IRCA system of indirect and rebounding shots, better suited to a billiard table than a national stage, continues to torment law-abiding business owners who find it harder than ever to follow a broken immigration law.

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.

——–