Immigration stakeholders howled with joy this week over an announcement by Janet Napolitano, the Secretary of Homeland Security (DHS), and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), about the forthcoming publication of a new immigration regulation.
Usually, the intention to publish a rule is no cause for huzzahs. But this Notice of Intent is different. It presages a rule that would prevent the separation of families for up to ten years by allowing unlawfully-present immediate relatives of U.S. citizens to file “provisional waiver” applications in the U.S. rather than abroad.
Under the rule as proposed, waiver applicants would be required to show that extreme hardship would befall their citizen family members if the three- and ten-year unlawful-presence bars were to apply as written in the Immigration and Nationality Act. Individuals granted a waiver would be assured that they could appear for an immigrant visa interview at a U.S. consulate or embassy outside the country and be able to turn right around and be allowed back in as permanent residents (assuming that unlawful presence is the only inadmissibility ground the consular officer uncovers at the interview).
The announcement generated praise from editorialists (a “Common-Sense Immigration Move“) and the immigration bar (“the move is . . . smart enforcement because it will reduce the illegal immigrant population and allow [DHS] to better focus its resources on keeping America secure and safe“). However laudable the effort to establish a “provisional waiver” rule that avoids family separation, its scope, regrettably, is limited. It ignores the pain of family separation where the qualifying relative is a permanent resident who suffers hardship no less extreme than a citizen’s, and only covers unlawful-presence waivers, even though the immigration laws provide several other inadmissibility grounds that permit an extreme-hardship waiver.
The overly narrow scope of the proposed in-country waiver rules is understandable, however, in light of other reports this week which received far less notice but still caused immigration insiders to howl, this time in fear, along with alternating yelps of outrage.
Three articles from The Daily, “a national multimedia iPad publication” subsidized by the Rupert Murdoch empire, reported the leaked contents of a draft DHS Inspector General report commissioned at the behest of Republican Senator Charles Grassley. The Daily articles carry breathless headlines conveying the sense that dastardly deeds are about to be uncovered (“RUBBER STAMP[:] Probe reveals feds pressuring agents to rush immigrant visas – even if fraud is feared,” “PUSHING THE ENVELOPE[:]Immigration counsel in conflict-of-interest probe over visa approval,” and “IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests“).
The first article is based on a “40-page report, drafted by the Office of Inspector General in September but not publicly released, [which] details the immense pressure immigration service officers are under to approve visa applications quickly, sometimes while overlooking concerns about fraud, eligibility or security.” The article, citing the IG’s draft report, notes that out of 254 immigration adjudicators interviewed 25% reported that “they have been pressured to approve questionable cases, sometimes ‘against their will.’” The IG does not identify any wrong-doers by name. Yet The Daily article, illustrated by a mocked-up photo of immigration applications bearing multiple red “APPROVED” rubber stamps, proceeds to pin the wrap on USCIS Director, Alejandro Mayorkas, as the alleged perpetrator-in-chief who, it would seem, countenances fraud as a volitional byproduct of his supposed “get to yes” campaign.
The Daily‘s initial article quotes unidentified adjudicators who claim they were demoted for declining to approve legally undeserving cases or replaced by officers willing to “get to yes”. None of the 75% of adjudicators who disputed the claims of pressure to say “yes” is quoted in the article, only private lawyers who nonetheless believed that “officers are just looking for reasons to deny a case”. The accompanying photo and the “RUBBER STAMP” headline suggest the accuracy and thoroughness of the reporting. The immigration forms depicted are immigrant visa applications which applicants submit to the State Department, not to USCIS. The reporter, moreover, presumes that the griping adjudicators actually know the immigration law — even though precious few adjudicators are lawyers.
I wrote this email to the reporter with a caption, “Much more to the story than you’ve published,” offering reasons why the initial article was incomplete, and asked for a copy of the unpublished IG’s draft report. Her answer: “We are not distributing the draft report as of yet, but I’ll reach out to you when I do a followup.” Despite two later, equally sensational articles, the reporter has not reached out, suggesting that getting to the facts about the USCIS California Service Center (CSC) — the source of the original complaint to Senator Grassley — is not a high priority.
The Daily‘s second article is essentially a vindictive hit job on Roxana Bacon. A former USCIS Chief Counsel (who after her departure rebuked the USCIS for a host of failings), ex-Prez of the Arizona State Bar and past General Counsel of the American Immigration Lawyers Association, she apparently jousted internally over the question whether the University of Arizona knew better than a CSC adjudicator if “a visiting scholar of geography from Mongolia,” petitioned as an O-1 (Extraordinary Ability Alien), should be allowed to fill an assistant-professor post.
Although the second article notes the IG’s reported belief that her “efforts were not based on reasonable interpretations of the law,” I have my sincere doubts, especially without seeing the underlying case file. Roxie Bacon and I were partners for eight years at a prominent international law firm (Bryan Cave LLP) where we co-managed a group of ten immigration lawyers and 20 paralegals. She practiced immigration law for over 30 years and is razor-sharp in intelligence and first-rate in her understanding of the legal requirements for extraordinary ability. On the other hand, I, like the immigration lawyers quoted in the article who criticized USCIS adjudicators’ decisions, have often seen CSC opinions laden with failures of logic, misreadings of the facts, and plainly erroneous legal analyses, slathered over with large dollops of syllogistic and disingenuous pseudo-reasoning. In other words, until all the facts are revealed, my experience with Roxie and with the CSC, cause me to give her the benefit of the doubt.
The final article in this trilogy, “IMMIGRATION SCANDAL PROBE[:] Congressional panel to investigate claims officers were pushed to OK visa requests,” shows how politics is played in an election year. Rather than waiting till the Inspector General completes his report, House Judiciary Committee Chairman, Republican Lamar Smith, is eager to investigate alleged abuses that “threaten ‘the integrity of our immigration system.’”
Indignant at the charges, Rep. Smith told The Daily:
“It’s outrageous that administration officials would compromise national security for their own political agenda and gain,” Smith said, pointing out that visa applications often lead to U.S. citizenship. “The president’s most important job is to protect the American people, but it seems this administration is more interested in ignoring immigration regulations than making sure those who come here will not cause us harm.”
(This is the same Rep. Smith who — in most un-Republican fashion — has cozied up to the ICE officer’s labor union, which “so far [has] not allowed its members to participate in the training” required to exercise prosecutorial discretion properly when enforcing the immigration laws.)
What The Daily‘s reporting fails to recognize, however, is that the conjured controversy within USCIS is merely an internal employment dispute magnified by a small group of power-mad, disgruntled and insubordinate adjudicators masquerading as whistleblowers who — like Peter and the Wolf, imagine or fabricate broad-based threats to the immigration system and the nation’s security. In reality, these adjudicators are “mutineers” who use Washingtonian gamesmanship to fight Director Mayorkas “tooth and nail over every innovation and improvement he [has] proposed.”
Imagine what DHS might have done and yet do to improve the workings of the legal immigration system were it not for the spine-chilling howls of riled adjudicators who trump up controversies merely to play out the clock (they hope) till a different administration comes to power — one that might be pleased to return to the “culture of no.” Consider also another type of “Howling” — one from the 1981 film of the same name, in which a reporter “is sent to a . . . center whose inhabitants may not be what they seem.”