The end of one presidency and the start of another often spark strange behaviors in Washington, especially when spiked with the catnip of immigration.

Remember the Nannygates of years past when Zoe Baird and Kimba Wood (Clinton nominees for Attorney General) and Linda Chavez (Bush’s Secretary of Labor Designate) all fell from grace for housing or employing unauthorized foreign workers. Strangely, however, this year, Treasury nominee, Timothy Geithner, is defended for payroll tax violations by Republicans who whisper nary a word about his foreign housekeeper’s expired work permit.

Witness also George Bush last week speaking to a group of Texas reporters and regretting that he pushed his failed bid to privatize Social Security in 2004 rather than fight early and hard for immigration reform: “I’m very disappointed that [comprehensive immigration reform] didn’t pass . . . not for political standing or for Latinos, but because it was best for the country.” Mr. Bush, in today’s Farewell Address to the Nation, still seems to understand that America “is a nation that inspires immigrants to risk everything for the dream of freedom.”

Yet his Administration in the past fiscal year doubled federal prosecutions of immigrants rather than aggressively pursue serious crimes. As one unnamed prosecutor told the New York Times:

“’A lot of the guys I work with did nothing but the most complex cases — taking down multigenerational crime families, international crime, drug trafficking syndicates — you know, big fish,’ said the prosecutor, who did not want to be identified as criticizing the department he works for. ‘Now these folks are dealing with these improper entry and illegal reentry cases.’ He added, ‘It’s demoralizing for them, and us.’”

This same mania over immigration enforcement was also apparent at today’s confirmation hearing for Arizona Governor Janet Napolitano, the Obama pick for Secretary of Homeland Security, an encounter that the Immigration Policy Center likened to a “tea party” that left precious time for serious discussion of the new Administration’s policies on comprehensive immigration reform:

“Serving more as a tea party than a rigorous cross examination, confirmation hearings are notoriously poor venues for deep policy discussions. The Governor has a wealth of relevant experience and a deep understanding of all of the issues about which the Senators questioned her. However, the hearing left little room for drilling down into the specifics of complex policy issues. While discussion of enforcement was plentiful, questions and (therefore answers) about what to do with 12 million people living without documentation in the U.S. were in short supply.”

As we approach the cool and collected era of “no drama” Obama, the new President should recognize that the problem of the vulnerable underclass of immigrants lacking legal status will not go away. The Migration Policy Institute reports that, despite the imploding U.S. economy, undocumented immigrants are staying put, notwithstanding anectdotal evidence to suggest that they’re homeward bound. The solution, then, is not to repeat the mistake of Bush’s temporizing on immigration. Just as the incoming President is reading history books to find ways to fix the economic mess we’re in, he should likewise be sure to remember recent history, or as George Santayana reminds us, we all may be condemned to repeat it.

For several months, I’ve looked into the immigration tea leaves and seen the need to make a major career change. Immigration law has reached game-changing inflection points in the past: The 1986 Immigration Reform and Control Act of 1986; the Immigration Act of 1990; The Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Each time, developments swept over me, and (luckily) I surfed the waves without a fall into the sea, traversing from solo practice to large, full-service firm, to immigration boutique. While I don’t claim the power of clairvoyance, I sensed that my past approach of largely reactive behavior might not work out so well this time. My tea leaf reading told me that:

1. The Labor Department, ICE, CBP, State and USCIS (and its FDNS investigators) would continue to focus aggressively on immigration compliance and enforcement, thereby creating a growing demand for lawyers with a depth of bench and broad-ranging expertise in the allied areas of immigration and labor & employment law.
2. These conjoined practice areas would also see opportunities for client representation involving immigration-related employment discrimination and government audits to enforce an enhanced array of worker protections.
3. The likelihood in the near term of dramatic changes to the legal immigration system and statutory reforms to solve the problems of illegal immigration.
4. The demands of globally dispersed enterprises for (i) the worldwide positioning of lawyers through alliances of name-brand immigration experts organized in project teams, (ii) the scalability of service levels based on rising or falling need for immigration legal services; and (iii) use of technology and insourced and outsourced LPO (legal process outsourcing) solutions in ways that promote cost efficacy and innovative value-added services.
5. Blue Ocean strategies for devising 21st Century solutions to the changing demands of enterprises for global mobility management, and of individuals and families pursuing the American Dream, however defined (whether in the U.S. or in another country that likewise stands as a land of opportunity and freedom).

With these likely trends in mind, and jazzed for new challenges, I’m winding up my 11-year immigration boutique, Paparelli & Partners LLP, and have happily taken my entire team with me to a very innovative immigration group (with whom we are molto simpatico on culture and values) at the 750+ lawyer firm, Seyfarth Shaw LLP. Wish us well. The future is an exciting prospect.

Last week, a client died unexpectedly, and two government officials tasked with administering the immigration laws retired after long careers of honorable service.

The client, a renaissance man of many talents, was remembered by a throng of mourners representing a wide cross-section of the community — academia, local government, the arts, family and friends. I saw him two weeks before he died. He was joyful because his long-awaited administrative appeal had finally produced a favorable decision and a remand. We both had truly expected that he’d soon enjoy immigration justice after many years of waiting. His death underscored the truth of the maxim that justice delayed is justice denied.

The retiring immigration officials represented an increasingly rare genus of civil servant. I wrote a farewell note to one in words that could have applied equally to both: “You have always been my model of the superlative public official – courteous, helpful, responsive, knowledgeable and friendly.”

Neither of these officers were pushovers. Both understood the immigration laws, applied them fairly, knew how to listen, kept an open mind, and took time to read an application for an immigration benefit carefully to identify the strengths and weaknesses of the case. They were not afraid to reach a decision within a reasonable period of time, or to reconsider if new evidence or additional legal arguments were offered. Most of all, they reflected a tradition of even-handedness and timely justice best reflected in a memorandum from Durwood Powell, Jr., a long-retired Regional Commissioner of the legacy agency, Immigration and Naturalization Service.

Sad to say, however, too many of today’s breed of immigration official display a different set of priorities. Haunted by fear that he or she will be second-guessed and reprimanded for granting an immigration benefit to an undeserving or possibly dangerous applicant, officers are wary and chary of saying “yes.” They tend to know the fine points of civil service rules governing their employee benefits, but are less zealous in mastering the admittedly complex immigration laws or publishing regulations that would help the public understand the law. Speed of decision-making is espoused as an important value, but too often honored more in the breach than the observance. Many look for ways to say “no” even if the effort at times produces specious reasoning. Others build new hierarchies of power, whether authorized by statute or not. There is the Fraud Detection and National Security Unit of United States Citizenship and Immigration Services, growing by leaps and bounds with the fuel of immigration user fees paid by legitimate and deserving applicants. There is an overlapping group at USCIS headquarters and the regional service centers dubbed the “Threat Assessment” team.

Ironically, the very existence of immigration delays and artificial obstacles created by the ferreters of perceived fraud and the risk-averse adjudicators produces the results they fear. According to a Homeland Security Department threat assessment, “[l]ong waits for immigration . . . will cause more foreigners to try to enter the U.S. illegally.”

Tossing cynicism to the wind, I hereby offer a few New Year resolutions for immigration officials to consider adopting:

1. I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.
2. I will not issue requests for evidence merely as a means of pushing a case off my desk.
3. I will decide cases promptly and remember that justice delayed is justice denied.
4. I will not judge the case by the size of the company or the nationality of the applicant.
5. I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.
6. When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.

This month, the Task force for New Americans (chaired by the Secretary of Homeland Security) issued a generally commendable document, Building an Americanization Movement for the Twenty-first Century, A Report to the President of the United States from the Task Force on New Americans. The report talks about the importance of Americanization, which it defines as:

[T]he process of integration by which immigrants become part of our communities and by which our communities and the nation learn from and adapt to their presence. Americanization means the civic incorporation of immigrants; this is the cultivation of a shared commitment to the American values of liberty, democracy and equal opportunity.

The report offers many worthy suggestions for the integration of the foreign-born into American society. While I laud the report, for my taste something was missing. I would have liked to have seen more discussion of how immigrants (whether or not they become citizens) can teach Americans how to better appreciate the opportunities that America offers strivers and dreamers. Books could be written and movies made on that subject (in fact multitudes of these can be found in libraries and video stores throughout the country).

One such American who needs to learn this lesson is an unnamed federal district court judge who failed to administer the naturalization oath in time for 1,951 otherwise eligible applicants to become citizens, register and vote in the last election. The Ombudsman to U.S. Citizenship and Immigration Services described this duty-shirking judge in a December 16, 2008 Study and Recommendations On Naturalization Oath Ceremonies:

In one of USCIS’ largest districts where the court retains exclusive oath ceremony jurisdiction, the court refused to schedule sufficient additional ceremonies to accommodate the large number of naturalization applicants who had completed processing in Fall 2008, and refused to allow USCIS to administratively naturalize these applicants. As a result, 1,951 individuals did not receive the oath in time to register to vote in the 2008 elections, despite USCIS having completed processing and communicated its willingness to quickly plan additional ceremonies with the court. The District Director approached the court repeatedly requesting additional ceremonies and was told the court had already “done more than its share.” When the District Director suggested USCIS be permitted to hold administrative ceremonies the court “vehemently refused,” noting that these persons were not 45 days out from approval; these persons were instead scheduled for court ceremonies in November 2008. (Footnotes omitted; bolding added.)

Contrast the attitude of this judge with that of an immigrant from Iran, Paul Merage, who much like Horatio Alger, has chosen to give back to the America that gave him and his family a chance to succeed:

Founded in 2004 by Paul Merage, a successful immigrant entrepreneur, the Merage Foundation for the American Dream is dedicated to promoting opportunities for immigrants in the United States. Each year the foundation provides fellowships to promising immigrant students graduating from college to help them develop leadership skills. The foundation also distributes a popular DVD series and lesson plans to schools to highlight immigrants’ contributions to the United States. The foundation broadly recognizes their contributions through national awards and hosting national fora on immigration issues. (Source: The Report to the President of the United States from the Task Force on New Americans, supra.)

Well the caption for this posting talked about problems of immigrant integration and an opportunity. Here’s the opportunity, from an email sent by the Executive Director of the Merage Foundations, Marshall Kaplan:

I need to hire a real good Program Officer for the Merage Foundation for the American Dream. The person hired should reflect a graduate degree one of the following: law, business, public policy etc. He or she should be good on both inside and outside; that is, a good manager and a good outreach person. Hopefully [he or she] would have had at least 3 years of experience working in a non profit and government agency dealing with public interest issues. Work for a private firm on similar issues or directly on immigration would be equally great. Our web site www.meragefoundations.com describes the American Dream Foundation and what it does. Salary competitive with non profits doing similar kinds of things. It is negotiable.

Opportunity does not knock merely once; in my view, it is an anvil chorus. This one would be perfect for the immigration lawyer or paralegal yearning to make a difference.

These days, the news on immigration seems like one large and scary technology mashup. The evidence is everywhere:

• The Department of Homeland Security (DHS) publishes a final rule that authorizes the taking of DNA specimens from persons merely detained (not necessarily found liable) for alleged civil violations of the immigration laws.
• DHS reports to Congress on its data mining activities as the ACLU’s Legislative Counsel, Timothy Sparapani, criticizes predictive data mining as a “categorical and unmitigated waste of taxpayer dollars . . . akin to alchemy or astrology in its relationship to science.”
• Congress considers legislation that would reign in the practice of a DHS unit (Customs and Border Protection) in seizing and searching the laptops and cellphones of U.S. citizens and lawful residents at U.S. ports of entry without any suspicion of wrongdoing.
• U.S. Citizenship and Immigration Services (USCIS) awards IBM almost a half billion dollar contract that the vendor claims will produce technology to “serve as a key piece to enable the Agency to speed benefits determination, combat identity fraud, and reduce processing time backlogs.”
• The American Council for International Personnel reports in unofficial minutes of its liaison meeting with the USCIS California Service Center that “USCIS is looking more on the internet for publicly available information to verify an issue to resolve it before issuing [a request for additional evidence (RFE)]” — all the better to jump to a hasty conclusion and issue a mistaken RFE.
• E-Verify offiials offer webinars to federal contractors (on December 11 at 10:00 AM EST, December 18 at 12:00 PM EST and December 22 at 2:00 PM EST) by calling (888) 464-4218 or emailing E-Verify@dhs.gov and providing your name, company’s name, and phone number.
• USCIS has gone all Web 2.0 on us by posting its tweets on Twitter.

Meantime, in the Luddite world of technophones, we learn that — shades of Mitt Romney! — DHS has fined the housecleaning service of its boss, Michael Chertoff, for employing unauthorized foreign workers, while the chief CBP officer in New England, Lorraine Henderson, is indicted for the felony of allegedly harboring an undocumented Brazilian house cleaner.

I guess the lesson from all of these ominous portents can be summed up in the secretly recorded warning that erstwhile CBP Chief Henderson reportedly offered her housekeeper two days shy of the 7th anniversary of Sept. 11: “You have to be careful ’cause they will deport you. Be careful.”

The Wall Street types came first, and save for the unsaved Lehman Brothers, bailout delectables were generously doled out. Next came the hungry insurance behemoth, AIG, the large and small banks, the credit-card lenders and the makers of consumer loans. Each voraciously consumed their bailout largess.

Last, came the Big Three U.S. automakers, the UAW, and with them in tow, the parts suppliers, car dealers and myriad companies in the automotive supply chain. The answer so far from Messrs. Bush and Paulson, and from strange bedfellows in Congress, is a succinct and unsympathetic: “Fuggeddaboudit! Go eat the leftovers at the Bankruptcy Diner.”

There’s a lesson here for the advocates of immigration reform. Come to the table last, and expect to receive at best the leavings or at worst an empty plate. The Obama administration (with the majoritarian Democrats in the House and the near-filibuster-proof Senate) is now preparing the biennial meal and setting the table.

Who’s favorite dishes are being prepared? Which group’s crockery and dinnerware are to be laid out? If immigration reformers wait till the economy is stable — two years at best — the mid-term elections will disincline the Dems to become 524-group fodder for the die-hard anti-immigrationists in the Republican camp, and the hungry immigration reformers will not dine until 2011. Worse yet, a Clintonian repeat of history could then witness, a slimmed-down majority or even malnourished minority status.

If there is to be an immigration meal, it must be piecemeal. If immigration supporters cannot have a multi-course feast at a single sitdown dinner, then tapas eaten seriatim will more than satisfy the hungry reformers’ appetites.

The first immigration comestibles can be dished in early March 2009 when the continuing resolution will likely be continued again until the regular budget-appropriation season in the fall. The menu should include immigrant-visa recapture, EB-5 regional center renewal (permanently), AgJobs and the Dream Act, all justifiable contributors to an economic turnaround. Another opportunity arises in late 2009. By then it’s past the time to feed the hungry masses, especially Latinos who voted 60-31 Obama-McCain, with a slow path to citizenship for the 12 million unauthorized in our midst. They can cover the dinner tab with payment of fines and back taxes, and with the nutrient of legal status, help rebuild our crumbling infrastructure.

By 2010, and the coming midterms, all that good food will have been fully digested, and the larder of the Congressional supporters of immigration reform will have been replenished by the voters. Then, in 2011, with the economy rebounding, a comprehensive recipe can be used to nourish the country with safe and orderly future flows of temporary and permanent residents.

The lesson of the carmakers should be heeded. Wait too long to come to the drive-in window, and it will be shuttered.

The two-year presidential campaign created new legions of policy wonks. Now, with the Bush-to-Obama interregnum in full swing, the wonks have turned into an avid audience observing the jo-ha-kyū movements of Kabuki theatre as performed by the new administration-in-waiting.

On the immigration front, the thoughtful and deliberate character of the President-elect is on full, if subtle, display. During the campaign, he took counsel from two pro-immigration heavyweights — Bill Ong Hing and Jennifer Chacón. Now, he’s announced the appointment of a duo of leading lights to head his immigration advisory group: Alexander Aleinikoff, who has long argued for the fundamental restructuring of our immigration system and Mariano-Florentino Cuéllar, reported by the ABA to be the next Director of U.S. Citizenship and Immigration Services (USCIS), who has argued forcefully for the restoration of habeus corpus.

In a spirit of bipartisanship (much like the rumored retention of Secretary of Defense Robert Gates), President-elect Obama should consider keeping in place the current Ombudsman to USCIS (Michael Dougherty) who despite a very short tenure has made great strides in keeping USCIS on its toes.

I spent this week on a three-city speaking tour in Asia with a delegation from the County of San Bernardino (California) Economic Development Agency. Our purpose was to promote foreign investment into the county and outline the advantages of the EB-5 (Employment-Creation) immigrant investor visa category. Speaking in Seoul, Shanghai and Hong Kong to enthusiastic audiences, I was struck by several moments of irony. The audiences were amazed that in America a man raised in Indonesia, the biracial son of a Kenyan father and a Kansan mother, could become President of the United States. Despite the economic turmoil the world faces, these audiences still see America as a land of stability in a sea of uncertainty. They appreciate not just the improbable ascendancy of our President-elect. They also marvel at how the prolonged and hotly contested primary and general election races could result in such a smooth and peaceful transitioning of power. I was impressed with the dynamism and plentiful opportunities in Asia, and reminded that America is not necessarily the sole destination of choice. I was also struck by the farsightedness of San Bernardino County. While many local governments compete to display machismo toughness in immigration enforcement, San Bernardino promotes the economic benefits that employment-based immigration affords. If only our leaders in Congress were so enlightened. They just kick the football a few yards ahead by approving an extension of the EB-5 regional center program only to March 6, 2009 rather than grant a permanent extension. As unemployment soars well past six percent, our tentative federal leaders ignore the job-creation benefits that a permanent EB-5 regional-center extension would produce. Why should foreign investors be bullish on America when Members of Congress are short sellers? [Disclosure: With Steve Yale-Loehr and Nelson Mamey (a lawyer who prefers real estate finance and development over law practice), I own a recently approved regional center in Southern California.] ——–