Family reunification, at least as far back as the Quota Law of 1921, has been and remains today a cornerstone of America’s immigration laws. Yet, one growing segment of family immigration is disfavored by operation of law. These are the families of same-sex life partners who must live under a legal system that imposes family-separation rather than unity.

Section 3 of the Defense of Marriage Act (DOMA) provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

DOMA prevents America’s immigration officials from recognizing marriages and civil unions that are legal in the state or nation where a same-sex couple is wed or the civil union is registered. As a result, a U.S. citizen may not petition the immigration authorities to grant a green card to a foreign life partner of the same sex, no matter the length of the relationship or the couple’s level of commitment to each other.

This puts the United States out of synch with the 19 nations that recognize same-sex life partnerships for immigration purposes: Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, and the United Kingdom.

Inexplicably, while America prohibits same-sex family unity for green-card purposes, it allows committed life partners to come to this country, and remain for sometimes prolonged periods, as visitors, if the foreign life partner can prove that s/he won’t stay permanently.

Don’t ask (me to explain), because I can’t tell (why).

Well fortunately, for the first time ever, the Senate Judiciary Committee, at the direction of its chair, Sen. Patrick Leahy, will convene a June 3 hearing on a bill that would end this injustice, the Uniting American Families Act of 2009 (UAFA).

UAFA provides the same benefits under the Immigration and Nationality Act (INA)as are granted to opposite-sex spouses. It grants these benefits to the permanent partner of a U.S. citizen, defining the phrase to mean “an individual 18 years of age or older who (A) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (B) is financially interdependent with that other individual; (C) is not married to or in a permanent partnership with anyone other than that other individual; (D) is unable to contract with that other individual a marriage [recognized as valid under the INA]; and (E) is not a first, second, or third degree blood relation of that other individual.”

Sometimes the ground beneath our feet shifts and we can’t be sure why. This time it may just be that the stunning tectonic movement is caused by the marching feet of the supporters of civil rights for binational gay and lesbian couples.

Don’t ask, don’t tell; just call your federal legislators and urge them to enact UAFA.

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Blogger’s note:

In June, I’ll be attending the annual conferences of the American Immigration Lawyers Association (AILA) in Las Vegas and the American Council for International Personnel (ACIP) in Arlington, Virginia. If you plan on being at either event, please share with me your personal pet peeves about America’s dysfunctional immigration system and offer your best ideas on how to fix things. I’m all ears.

Angelo Paparelli

On the heels of my May 8 post (Do Immigration Fee Revenues Drive Justice at the USCIS?), the Office of the Ombudsman to U.S. Citizenship and Immigration Services (USCIS) issued a May 15 report criticizing the unfairness and inconsistency across USCIS offices nationwide of the agency’s procedures for getting a seasoned officer to take a second look at an adjudicator’s erroneous decision or action. The report, entitled “Motions Matter: Improving the Filing and Review Process for Motions To Reopen or Reconsider,” affirms the point that “clear Service errors” are widespread yet unresolved problems:

Rectifying clear Service error is a recurring customer and stakeholder concern. Filing and paying [$585] for a formal motion to reopen to correct clear Service error is costly and potentially time consuming. In addition, because refund procedures vary by office, formal motions may unfairly shift the financial burden to correct a clear Service error to USCIS customers. [Footnotes omitted.]

The Ombudsman, especially under the laudably activist reign of Michael Dougherty (who resigned recently to take a position in the private sector), has played an important role at what the Anderson Cooper 360° blog might call, “keeping them honest.” But even the most vigilant and persistent Ombudsman cannot replace the oversight roles of Congress, the President and the courts.

Bob Dylan in All Along the Watchtower could well have been thinking of USCIS when he metaphorically described the suffering that results from organizational misbehavior:

“There must be some way out of here” said the joker to the thief “There’s too much confusion, I can’t get no relief.”

The Roman poet, Juvenal, asked the right question:

“Quis custodiet ipsos custodes?” (Who regulates the regulators?).

More recently, in an aptly titled New York Times essay, “The Way We Live Now: Diminshed Returns,” Harvard Business School professor Niall Ferguson, although speaking of the financial crisis, could also have been describing the failings of the immigration bureaucracy when he noted:

“The reality is that crises are more often caused by bad regulation than by deregulation.” [Emphasis in the original.]

Comprehensive immigration reform (including essential reforms to the system of family-related and employment-based legal immigration) — no matter how smartly enacted — will be sent on a fool’s errand if Congress and the Obama Administration do not also reform the broken management system at all of our federal immigration agencies, and then allow the jurisdiction-stripped courts to be revested with authority to overturn agency error and wrongdoing.

There was no one in the bleachers at the new Yankee Stadium to offer a Bronx cheer to Secretary of State Hillary Clinton on May 13 when she promised to “streamline the visa process” during her commencement address to New York University students:

[W]e should bring more qualified students from other countries to study here. NYU provides a prime example of what international students can bring to a campus and how they can benefit themselves and their countries. Over 700,000 international students came to the United States last year, and NYU had the second largest number of any school in the country. [Applause.] Now, the benefits from such exchanges are so great that I am committed to streamline the visa process – [applause] – particularly for science and technology students so that even more qualified students will come to our campuses in the future.

As this quote from the State Department transcript of her speech shows, she did receive applause from the audience in the more expensive seats. Streamlining and efficiency, while laudable, are not always virtues, however, if these outcomes are not blended with fairness.

In FY 2008, the State Department’s consular officers denied 1,481,471 nonimmigrant visa (NIV) applications under Immigration and Nationality Act (INA) § 214(b) (failure to establish entitlement to the requested NIV classification). While 19,837 (1.3%) of these refusals were overcome, almost 99% of the refusals prevented possibly deserving applicants from coming to the United States. [Note: These do not include the 64,516 refusals for specific grounds such as criminal conduct, public charge, material support of terrorism, etc.]

Why is this a big deal? The 99% rate of § 214(b)refusals is important because:

• Consular officers are not given sufficient resources to spend more than just a minute or two to consider whether a visa applicant truly deserves to receive a visa.
• INA § 291 requires a visa refusal if the applicant “fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa.”
• Under the doctrine of “consular nonreviewability” (which more accurately should be dubbed consular absolutism) as interpreted by the federal courts and the State Department, decisions by consular officers on questions of fact (on which most visa refusals turn) are not reviewable by President Obama, Secretary Clinton or the Supreme Court.

In other words, imagine that you had one or two minutes to establish that you deserve a U.S. nonimmigrant visa. Your burden can only be met if it is “to the satisfaction of the consular officer.” No one but that officer has the power to decide. Streamlining this already abbreviated decision does not make for good foreign relations unless elements of fairness are introduced into the process. This is a job for President Obama, Secretary Clinton and Congress.

We can enact comprehensive immigration reform in all of its currently proposed versions, but unless the visa application and decision process is made more just, our foreign policy will continue to create “Ugly Americans” of our inadequately supported and excessively empowered consular officials.

Immigration lawyers, including this blogger, have attended liaison meetings with the USCIS California Service Center and its predecessor agency, INS, for decades. These meetings have been periodically convened (typically on at least a quarterly basis) since the agency was first housed, decades ago, in San Ysidro CA just inside the U.S. border with Tijuana (the facility was then known as the INS Western Adjudication Center — hence the answer to the trivia question of why receipt numbers for this office begin with “WAC”).

In the 1980s, lawyers and agency leaders alike could look out the WAC’s window at the border and literally see foreign citizens assemble, as dusk approached, preparing to hop the easily surmounted fence. Yet, even then INS officials could appreciate the difference between legal immigration and illegality. We were allies in a common effort to make the legal immigration system work fairly.

If trends developed suggesting problems in adjudications or clear Service errors, the old INS and many previous CSC directors and assistant center directors would invite the submission by immigration lawyers of sample cases so that supervisors could maintain quality control. Indeed, one of the grounds for requesting and receiving an expedited adjudication, according to the CSC policy guidelines, was “clear service error” in a prior decision.

At Wednesday’s CSC “external stakeholders” liaison meeting, however, the published answer to item # 2 on the formal agenda showed that the times clearly have changed. Citing 8 C.F.R. § 103.5(a)(5) which authorizes the USCIS to reopen or reconsider a decision at the instance of the agency adjudicator, item # 2 asked how an applicant for an immigration benefit could invoke the regulation where the initial decision involves an obvious mistake by USCIS. The succinct answer — file a motion with the proper fee. The fee for a motion to reopen or reconsider is $585.

To be sure, a footer on the published minutes made clear that the answers provided are merely the individual opinions of the officials present at the liaison meeting and do not necessarily reflect the policies and interpretations of USCIS. Still, in these straitened times, it sure seems like price gouging when an agency with the word “Services” in its title appoints officers who cannot acknowledge their own clear mistakes without shaking down the public by demanding almost six Ben Franklins.

The dismal state of the economy has caused economists to revive the Keynesian notion of “animal spirits,” the concept that the economy is not merely understood through the study of charts, metrics and data, but also from psychological factors that move people to invest, build, lend, buy and sell. A new book by economists George Akerlof and Robert Shiller, Animal Spirits: How Human Psychology Drives the Economy, and Why It Matters for Global Capitalism, drills down and expands on the concept. Akerlof and Shiller offer five psychological motivations that can explain the workings of the economy: “confidence, corruption and bad faith (or ‘snake oil’), fairness, money illusion, and stories.”

Insight into America’s dysfunctional immigration system can also be gained through these five prismatic animal spirits:

Confidence: Our citizens, and the foreign nationals and businesses seeking entry to America, must be given reason to believe that the system functions. Today, the immigration system functions like a metal Rube Goldberg contraption left too long in the rain. It creaks, squeaks, shakes and shudders, but does not produce good outcomes for far too many people.

Corruption and Bad Faith: The prize of the American Dream, regrettably, is far too alluring and precious for a substantial number of people on all sides of the immigration debate. Just as there are people willing to break the rules to get in, there are people with sinister motives within the bureaucratic system, in the media and in hate groups who cross the line of legality or pour snake oil on a gullible populace, both domestic and foreign, to prevent the system from working. They are like the tax oppositionists who espoused the elimination of government social welfare programs by “starving the beast.”

Fairness: There is little equity in the system today. Skimpy quotas punish those who wait for immigration benefits to arrive. Adjudication procedures fail to provide legal standing to all parties in interest, e.g., in an adjustment portability case, the new employer and the foreign applicant have no meaningful way to respond to a request for evidence sent to the former employer. Visa applicants receive about a minute or two to carry the difficult burden of establishing eligibility to come to the U.S. before the consular officer makes a snap judgment and moves on to the next person in line.

Money Illusion: The unresolved question of whether immigrants grow the economy and create jobs or snatch work that Americans are willing and able to perform is a form of loco-weed that prevents one from seeing the other side of the argument, when in truth each proposition is sometimes true and sometimes false.

Stories: Yes, stories, at bottom, are really what immigration is all about. Human beings living lives that are swept up, and sometimes swept away, by the failure to fix our broken immigration system.

* * * * *

Until the five animal spirits of immigration are understood, and intelligently addressed, comprehensive reform efforts, however worthy and urgently needed, will founder.

In a refreshing break from the Bush Administration’s enforcement strategy, John Morton, President Obama’s nominee to head Immigration and Customs Enforcement (ICE), testified before the Senate Committee on Homeland Security and Governmental Affairs that, if he is nominated, immigration law enforcement efforts would focus less on unauthorized workers and more on the employers who hire them: “We need to place renewed focus on employers to ensure that they are playing by the rules.”

At Morton’s nomination hearing, Sen. Claire McCaskill, D-Mo., who supports his nomination, said American employers who have employed unauthorized foreign workers show “absolutely no fear that they would ever face meaningful enforcement.” She added that Morton’s new focus on employers “will really be like shooting fish in a barrel. I’m looking forward to seeing some of those fish float.”

If playing by the immigration rules is the au courant enforcement theme, then Morton should also take aim at another full barrel of fish — the bureaucrats and enforcement officers who flout the immigration laws. Recent reports from the courts suggest that judges have taken the government to task for their treatment of religious workers, widows and widowers applying for green cards and foreign citizens who seek to stay in the U.S. long enough to challenge unjust removal orders.

If confirmed as expected, Morton should reach out to such stakeholders as business and trade groups, faith-based organizations, immigrants right groups and immigration bar associations. He should ask for examples (this blog lists many) where the government has not played by the immigration rules. With the blessings of Pres. Obama and Sec. Napolitano, he should then convene a meeting of the leaders of ICE and its sister agencies in the Dept. of Homeland Security (DHS), U.S. Citizenship and Immigration Services and Customs and Border Protection. This convocation should take a probing self-inventory to see whether their enforcement, admission and adjudication practices play by the immigration rules.

In other words, Morton should cause the rule-breakers in the government to lead by example. That would be a refreshing enforcement strategy and a fine kettle of fish indeed!

“Equal Justice under Law” is inscribed on the facade of the U.S. Supreme Court in Washington. The theory (uttered not by the Court but by the building’s architect) suggests that our government doles out justice blindly and equally, not only to the high and mighty but also to the lowly and powerless. The facade of equal justice is crumbling, however, and laid bare as a trompe-l’œil in recent news reports.

As revealed in the Wall St. Journal:

The Internal Revenue Service is offering leniency to many wealthy Americans who volunteer to pay taxes owed on assets stashed in offshore accounts, in exchange for information on the bankers who helped them hide the money. Taxpayers who take part in a new program being offered over the next six months will face lower penalties than would otherwise be due, and will likely avoid criminal prosecution, the agency said.

With similar lenity, the Justice Department has just announced that officials of the CIA who engaged in waterboarding and other forms of torture (based on legal memoranda that have since been repudiated) will not be prosecuted:

[Attorney General Eric Holder] also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.

To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.

When it comes to economic refugees, however, who crossed our border to take jobs cleaning toilets, wiping the bottoms of babies and the elderly, mowing yards and washing dishes, all to feed their families, the inJustice Department’s actions are robust and by-the-book. And even though deportation is a civil process, in the same way that suits against alleged torturers are civil proceedings, the accused who face immigration justice have no right to a lawyer at government expense.

Apparently, the IRS and the Justice Department understand the principle espoused by the English cleric Thomas Fuller (“rigid justice is the greatest injustice“), but don’t know when to apply it.

The New York Times reported this week on a fascinating scientific study. Researchers have discovered the possibility that bad memories can be deleted from our minds. The prospect of applying this finding to the world of immigration is even more intriguing.

Imagine if immigration opponents like Norman Matloff, Ron Hira and John Miano could stop blathering about employment-based immigration merely by deleting the falsehoods they spout:

• Matloff: “Underpayment of H-1Bs is usually in full compliance with the law, with employers exploiting loopholes;”
• Hira: “Loopholes enable employers to hire H-1B workers at below-market wages;”
• Miano: “The United States has a very generous immigration policy for skilled workers. America’s doors are wide open to the best minds in the world — both for permanent residency and for guest workers. For high-skilled workers with distinguished ability, the U.S. has “O” temporary guest worker visas, for which there is no numerical limit. The situation is the same for people seeking green cards.”

As for so-called H-1B loopholes, Matloff and Hira know not of which they speak. The dozens of pages of H-1B regulations published by the Labor Department require that H-1B workers be paid the “required” wage – a term defined as the higher of the prevailing wage in the geographic area where the work is performed or the actual wage paid to similarly qualified workers in the same job at the employer’s worksite. In most cases, employers merely use the prevailing wage for the particular job that the Labor Department provides. Clearly, the Matloof/Hira loophole argument is sufficiently loopy to be worthy of deletion from memory.

Miano’s claim is equally forgettable. No process wrapped in the thick red tape of ever-changing immigration rules, policy memoes and press releases that takes years to untangle can honestly be called “generous” and “wide open” — unless an uncovered manhole can be termed “wide open” and “generous” in that it offers a free ride to the sewer. Miano also shows signs of amnesia when he describes the “O” visa as requiring “distinguished ability” — a term that formerly qualified a professional worker for an H-1B visa — when the “O” actually requires the much more demanding standard of “extraordinary ability.”

But immigration memory-deletion should not be taken to extremes. We want the Members of Congress to remember the politicians who lost their seats in the last election by opposing comprehensive immigration reform. This recollection should be etched forever in our legislators’ consciousness as President Obama embarks on the fulfillment of his campaign promise to address our dysfunctional immigration system in his first year in office.