I’m clearing my desk to get ready for travel on Wednesday to Vancouver. That’s of course where the American Immigration Lawyers Association is holding its annual conference. One of the panels will be an open forum with the U.S. Department of Labor (DOL).

As most in the immigration world know, the DOL is very concerned about fraud in the immigration process. No ethical employers or lawyers would deny the importance of deterring fraud, and truly bad apples of course need to be removed from the barrel.

But when DOL targets reputable lawyers and law firms and audits all of their clients for alleged conduct that the agency belatedly acknowledges is within the proper scope of the attorney-client relationship, then the objective of fraud-deterrence is actually impaired rather than facilitated. Moreover, when the agency in the name of “program integrity” or “reform” seeks to minimize the role of lawyers, while continuing to promote a deeply-flawed PERM system and tolerate a role for unlicensed agents (consultants and notarios), then something is definitely wrong in Bureacracyland.

For background on the controversy, check out today’s article, co-authored by Ted J. Chiappari and me, in the New York Law Journal’s “Immigration Column,” available at this link.(By the way, the Merriam-Webster Online Dictionary defines “tizzy” as “a highly excited and distracted state of mind.” After reviewing the article, you, dear readers, can decide if the label is apt.)

So, if you’re heading to the DOL Open Forum AILA panel in Vancouver, maybe you’ll think of a polite question or two for the DOL representatives.

Americans are far more welcoming and warm-hearted than the reputedly cold-hearted Swiss, we like to believe. As the New York Times reports today, the Swiss people are set to vote on a ballot measure of dubious constitutionality that would let local citizens decide in secret and give no reason for rejecting a fellow townsperson’s application for naturalization.

The Times’ article tells the sad tale of Ms. Milikije Arifi, a 30-year legal resident of Switzerland originally from Macedonia, who is fluent in the predominant Swiss tongue (German), speaks German with a Swiss accent, has complied with all laws, paid taxes, and proudly supported the national soccer team. The Town Council of a Zurich suburb denied her naturalization application in a secret ballot, offering “insufficient integration” as the basis for its refusal of citizenship. Milikije’s lawyer suspects another motive:

“This is clearly a case of arbitrariness . . . The council thinks this woman looks like a Gypsy with her colorful clothes and her jewelry, so they just reject her in this succint Swiss way.”

America is not Switzerland. Citizenship through naturalization is a privilege the U.S. gladly grants to eligible foreign-born permanent residents who play by our rules, reside here for the required period of physicial presence (usually five years), and prove they can communicate in English and understand a modicum of American Civics and History. In our system, there is no test for “integration,” and if someone is denied naturalization our examiners give them a full explanation in writing. Indeed, U.S. Citizenship and Immigration Services (USCIS), the folks who decide naturalization applications, proudly displays on its website a photo of new citizens, a rainbow of races and gleeful peoples, proudly waving miniature American flags.

A look behind the scenes of this festive peoplescape, however, reveals a Swiss-like power to bar the path to citizenship much earlier in the process and likewise offer no reason whatsoever. Most foreign nationals who are granted U.S. permanent residency, the first requirement for citizenship, must first pass muster before an American consular officer at a U.S. embassy or consulate abroad. Consular officials enjoy absolute power to decide the facts necessary to establish a foreign applicant’s eligibility for a U.S. visa. And American courts have repeatedly upheld this fact-finding form of consular absolutism expressed in the decision to grant or deny a visa. If the facts were on the table, however, and the consular officer had to explain his decision in writing, perhaps that would at least salve the hurt feelings of a refused visa applicant.

Alas, this is not the law of the land. Immigration and Nationality Act (INA) § 212 includes in subsection (a)(3) among the categories of foreign persons who can be refused a visa:

“Any alien who a consular officer . . . has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . unlawful activity.

Thus, discovery of an adverse “fact” is not required; a consular officer may simply refuse a visa if s/he has mere “reasonable ground to believe” that the foreign citizen will enter the U.S. to engage “incidentally” in any unlawful activity. Thus, the presumption of innocence and the requirement of criminal conviction that satisfies due process are not needed. Apparently, spitting on the sidewalk in violation of a city ordinance would be sufficient. Worse yet, another section of the immigration law, INA § 212(b)(3), allows the consul to give no reason whatsoever for the wishy-washy “reason-to-believe [intent-to-engage-in]-unlawful-activity” basis for refusal of a visa.

So, yes, our laws (which reflect the choices of the people we elect, and presumably, our own values) are not like those of the Swiss. We are more efficient (we can keep people out much earlier than the Swiss). We are also more parsimonious with words (we need not even be “succinct” – we can merely remain mum).

Rather than engage in self-congratulation at our supposed moral superiority, we Americans should look more often behind the scenes of our immigration laws and procedures. Perhaps we’d find Oz, a supposed wizard who is merely “an ordinary, American man who has been using a lot of elaborate magic tricks and props to make himself seem ‘great and powerful.'”

When American farmers cut down blossoming cherry trees that take years to bear fruit, something is wrong. When peach trees are also chopped down, and tomatoes, asparagus and cabbage, although profitable and tasty, are not planted, something is wrong. When farmers instead buy expensive machines that are too ham-handed to pick delicate produce, yet spew harmful vapors from the burning of fossil fuels, it is more than wrong; it’s tragic.

Despite the dangers of industrialized farming and the beneficence of the local farming movement, respectively decried and praised by writers such as Michael Pollan in The Omnivore’s Dilemma, America’s political leaders do nothing to fix our broken immigration system.

A bipartisan effort to provide a solution, by increasing the supply of foreign agricultural workers, just failed in the Senate. The AgJobs bill, added as a rider to the Iraq Supplemental Appropriation legislation, but assailed by politicians on the left and the right of the legalization/no-amnesty divide, would have added over a million jobs to pick American produce and offset our need to import food from abroad.

At least George Washington admitted that he chopped down the cherry tree. Why won’t our legislators have as much candor as our first President? They chopped down the cherry trees!

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Is there something in the water? Has the frenzied focus on immigration enforcement prevailed over the rule of law? Here’s my sample bill of particulars:

• Congress gives the Secretary of Homeland Security authority to waive environmental and all other laws that stand in his way in building the fence that will go nowhere, i.e., as the Secretary acknowledges, will not be a cure-all in stopping the centuries-old cross border traffic (which all but begs for a legal way to manage the flow);
• The Federal District Court in Iowa, announcing in a press release the dispatch of Federal Judges to Waterloo, Iowa, for the criminal prosecution of “illegal aliens,” seems to forget about the presumption that all defendants are considered innocent until proven guilty;
• The same Federal Court is reportedly assigning appointed defense counsel up to 10 cases per lawyer and conducting mass hearings, thus making it impossible for the defense lawyers to conduct a meaningful defense and for the defendants to receive a fair trial;
• Federal law enforcement authorities were reportedly aware of an Iowa state investigation into alleged child labor law violations at the Pittsfield, Iowa Agriprocessors plant, but wilfully interfered by conducting the raid and arresting and detaining several children (including a 13-year-old) who were prepared to testify about child labor abuses.

To be sure, no one believes we should turn a blind eye to violations of the immigration laws. Rather, we should temper this zeal for an immigration-enforcement-at-all-cost policy with a dose of respect for the rule of other laws too.

The last few days, in so many ways, have laid bare the raw wounds of our frail immigration system.

• The Washington Post concludes a four-part investigation into the inhumane and horrific conditions for immigrants detained and too often allowed to die in custody for civil infractions of our immigration laws.
• The New York Times reports on the immigration red tape faced by U.S. soldiers who apply for visas to save the lives of Iraqi translators marked for death because they aided America.
• That paper also tells the sad tale of an Italian who merely wanted to visit his American girlfriend only to be shackled and then jailed for 10 days because an immigration inspector trumped up a claim that the man feared persecution in Italy.
• In the same week, ICE and DOJ agents conduct the biggest raid in recent history on the nation’s largest Kosher meat processor, arresting almost 400 people.

All of these actions stem from the Executive Branch. Where is the compassionate conservative of Crawford TX who proclaimed two years ago this week that he “gets” immigration? The President still has over seven months left in his administration to quell the immigration chaos. Why is he not reigning in his Departments? Why are Congressional investigators not holding Bush administration officials accountable?

Must we wait till January or later before our leaders take meaningful action to bring a sense of order, justice and most of all pragmatic humanity to America’s train-wreck of an immigration system? No, we need not; but our immigration problems will only be resolved when the American people protest so loudly that see-no-evil politicians are forced to act.

Gigabytes of platitudes have spewn forth from the anti-immigration cabal in Congress about their self-proclaimed respect for foreign citizens who wait patiently in line and play by the rules. The law-abiding folks from other countries — those with work visas or green cards who pay U.S. taxes and those living abroad whose spouses are in the U.S. military — aren’t buying the blather.

In fact, despite the economic stimulus checks now being sent out, these benighted folks aren’t buying much of anything. That’s because Congress has denied them their rebate, even though they’ve paid U.S. taxes, by requiring a Social Security Number for every household member. The problem is that IRS gladly accepts tax payments from law-abiding foreign citizens and issues them a “taxpayer identification number” or “TIN” but the Social Security Administration (SSA) refuses to issue them a Social Security Number.

So, by Congressional decree and SSA fiat, these folks who “wait patiently” and “play by the rules” will be cheated out of the $1,200 rebate for a married couple and the $300 per-child rebate. Obviously, if they play by Congress’ rules, they’d better be patient because they’ll be waiting a very long time for that phantom rebate.

Sauce for the gander is not necessarily sauce for the goose. If a private employer fails to pay the prevailing wage to a worker in H-1B visa status, U.S. immigration law authorizes the Department of Labor to order the employer to pay back wages. When a VA hospital is the short-changing employer of 11 H-1B doctors, however, the wage protections of our immigration laws can be ignored, so says the General Counsel (GC) for the Department of Veterans Affairs (DVA).

Sovereign immunity, the doctrine that bars suits against the government when acting in its governmental capacity, prohibits payment of back-wage claims. According the DVA GC’s opinion, Congress didn’t express itself unambigously and say clearly that sovereign immunity is no bar to enforcement of a DOL order for back wage payments.

So, Members of Congress, if you expect employers to follow the immigration laws, lead by example. Amend the immigration laws to say that notwithstanding sovereign immunity, when the VA or any other government agency that employs H-1B workers stiffs them on wages, backpay is due.

Has it come to this? Foreseeable panic spreads when U.S. Immigration and Customs Enforcement (ICE) officers enter neighborhoods near schools. City and school officials in Oakland and Berkeley California have their hands full calming the frayed nerves of children in panic.

When will ICE learn to temper its power with common sense? America has many problems: poverty, lack of health care, an economy toppling into recession, a crumbling infrastructure, an over-stretched military, food and gas inflation, pollution, to name but a few. Must our government add to the pain by scaring our children?

ICE should chill for now. Let the next President and the forthcoming Congress have a chance to lead the charge for immigration reform, rather than unleash an overzealous police agency to spread panic in the land.