Archive for November, 2009

Another frustrating day at the USCIS races

Wednesday, November 18th, 2009

It may seem like I have been concentrating a lot on USCIS (U.S. Citizenship and Immigration Services) these days. With all the bad things that happen to people – like prolonged detentions, abuse at the border, laws that separate families forever – the problems with USCIS may pale in comparison. However, immigration customers most often deal with USCIS which is probably the largest component of the DHS (Department of Homeland Security) immigration triumvirate (C.P., ICE, USCIS) which grants all immigration benefits and collects nearly all the money so difficulties there impact more people than difficulties in the other immigration organizations.

Yesterday was a day I had plenty of interaction with USCIS. A morning interview scheduled for 11:15 a.m. took place at 12:30 p.m. The officer was sincerely apologetic about the delay and I have absolutely no doubt that the officer’s explanation for the delay was true – some difficult cases were on the officer’s docket that morning that consumed a lot of time. However, like an airline that is sincerely apologetic but late all the time, the apologies, though sincere by the individuals involved, do not excuse the system as a whole. Every day there will be difficult cases. The “system” should acknowledge the this fact. Provisions should be put in place such as:

1. Provide for the likelihood of difficult cases when scheduling. Perhaps build gaps in the schedule so a difficult case will not cause a cascading delay throughout the day.

2. Tell those waiting there is a delay. Instead of sitting like loxes for an hour and fifteen minutes, the customer could be told to come back in an hour.

3. Create a system where an adjudicator who falls behind can hand a case or two to someone else (like a supervisor?) who was not plagued by difficult cases.

Love may mean never having to say you’re sorry. So would improvements to a poorly functioning system.

Another interview in the afternoon had different shenanigans. The case involved an applicant who had HIV. The officer presented us with a list of requirements to get a waiver for HIV, which the officer told us was required because having the disease is a ground of inadmissibility.

A quick aside – if I was a bridge builder and in the news the big story was of a bridge collapse, I would be very interested in it. I would probably watch the news with interest, buy a newspaper, go on line to read more. I would be naturally curious about it. The news would clearly pique my interest.

Well, a little more than two weeks ago, the lead story on the news was that HIV would no longer be a ground of inadmissibility. The President made a speech where he announced it. The new rule was published in the federal register. All the TV news shows broadcast it at the beginning of their broadcasts. It was on the first page of newspapers and all over the Internet. You would think immigration officers whose job is to determine inadmissibility issues would have heard of this and integrated it into their work. When I pointed out that the law had changed, the officer (a very kind and efficient person) spoke to a supervisor. The officer returned with a memo from mid-September 2009 discussing how to deal with HIV. I pointed out that the memo was dated a month and a half before the President’s announcement. I got an assurance that if I submitted evidence that the law had changed, the officer would run it up the flagpole. I went back to my office and printed out the federal register entry with the new rule and the transcript of the President’s speech and sent it over to the local office. Hopefully, these pieces of evidence will eliminate the need to provide the documents USCIS is now asking for.

And then I looked at the mail. I got a request for evidence from the local office in a case – a fee receipt. First, USCIS takes the money for the forms we file. If the form is in the file and it has a case number, it would not be there unless it was paid for. Secondly, I submitted the fee receipt when I filed the case. Third, we had an interview and discussed the existence of the fee receipt in the officer’s file. The fix here is an easy one – give them what they want; just mail a copy of the receipt – and hope the mail room does not reject it and hope it gets to the file and hope the officer sees the file before the case is denied or sent to storage. I am pretty confident this will happen. Perhaps if the President would make a speech about my receipt being mailed, it would not be overlooked. Then again, maybe not.  November 18, 2009.


Holder critics miss real propaganda victory.

Sunday, November 15th, 2009

Eric H. Holder Jr., a man who I recently have sued three times, accusing him of wrongly locking up people (two are now free), announced this week that Khalid Sheikh Mohammad (KSM*) and four other terrorism suspects will be tried in the Federal District Court for the Southern District of New York for their offenses. Up until now these men have had no trial. They have been wallowing in detention at Guantanamo – KSM since 2003. A system of justice has yet successfully to be developed to try them. Mr. Holder decided to use, instead, a justice system already established, the federal court system.

Like any time anything happens with the current presidential administration, as soon as a proposal or a plan or a policy is announced, within seconds out of the woodwork come the critics. I categorize the criticisms of Mr. Holder’s decision into two categories: 1) the court and New York City cannot handle a trial, and 2) KSM and the others will use the court as a propaganda forum providing them with yet another propaganda victory [the first victory being successful terrorist attacks]. Calling Holder a Nazi or a Socialist or a Stalinist or accusing him of conspiring purposefully to destroy America, common ridiculous accusations against the Obama administration, would be as cogent as these criticisms.

First, the idea that New York cannot handle the trial. Do people think no one thought of this? New York’s Police Commissioner thought of this. Raymond Kelly, who I would imagine thinks about these kind of things more than most, thinks New York can handle this. Traffic will still flow. People will be able to go to work. Order will be maintained. The United Nations is in New York. Real Nazis and Socialists and Stalinists and people conspiring to purposefully destroy America come to town all the time and New York survives. The courts themselves have already held terrorism trials and have held all kinds of other attention-grabbing trials. They know how to handle this. The judges know what to do. It is not like they are going to fly in Lance Ito to run the proceedings. Do people really think that Mr. Holder would bring these defendants to New York if he could not convict them? It seems to me that supporters of America’s capacities who believe that American power and grit can transform Iraq and Afghanistan into flourishing democracies, intimidate North Korea and Iran to abandon nuclear ambitions, and can win a war on drugs are being insultingly negative about America to think it cannot pull off some trials in a court in New York City.

The other criticism is even stranger – the idea that KSM and the other defendants will use the trial to spread propaganda. First, I imagine that most people who think such things know about court rooms from watching Matlock – where people go on and on, mostly Andy Griffith goes on and on (writer’s confession – I never watched a whole episode) – with no rules as to who may say what, when, and how. Matlock writers know about as much about legal relevance and the rules of evidence as Barney Fife. A real court room is not a place where people can go on saying what comes to mind. A few times attorneys have tried to present me as a witness to explain my view of certain laws. They have failed. Judges don’t allow people, even defendants, to get up and spout their opinions willy nilly. Here is a hypothetical transcript of what will happen if KSM’s lawyer tries to create a propaganda forum for KSM at his trial:

Attorney for KSM: Sheikh Mohammad, why did you blow up the Twin Towers?

U.S. Attorney: Objection. Relevance.

Judge: Sustained.

Defendants do not get to explain why they do what they do at their trials. Ok, maybe at the sentencing phase. After a trial and a conviction, there will be a sentencing phase. Stacks of documents are filed and testimonials presented of the terrible events of 9-11 and the impact on thousands and thousands of people. Potentially, KSM will be allowed to speak regarding his sentence. We won’t hear a tape of it. We’ll hear redactions of it read by Katie Court. We won’t see pictures of it. We’ll see sketches of it. He will ask to die. He will likely be obliged.

Why don’t these critical pundits consider the other side of the propaganda puzzle? How does America treat people who do evil things? Do we kidnap them, lock them up in communicado for years and years without trial, deprive them with contact with the outside world, and torture them like “other countries” do? No, we afford them representation, give them a trial with a broad spectrum of rights – including a lawyer, the right to a jury, the right to challenge evidence, and the right to submit their own (relevant) evidence, and then give them appellate rights. What will be the propaganda impact of that? Will millions of people around the world watch such a “spectacle” and conclude America is an evil country trying to spread oppression around the world, or rather, conclude as Ronald Reagan used to say, that America is a “Shining City Upon a Hill.” My bet, the latter. Now that will be definitely be a propaganda victory.

*To paraphrase a jokeI read in the New Yorker attributed to Barney Frank, regarding LGBT’s, maybe the funniest joke I ever read, one might think that KSM stands for some kind of fried meat, and indeed he soon may be.  November 15, 2009.




Jail screening programs waste resources.

Friday, November 13th, 2009

News reports indicate that under a policy started under the George W. Bush administration and expanded greatly under the current Obama administration, Immigration and Customs Enforcement officers interview aliens in jails. If they are deportable based on their criminal records or if they are undcoumented, ICE takes them into their own custody for deportation.

So far, according to a November 13, 2009, New York Times story, 110,000 such aliens have been identified. The program is lauded as a low-cost way to find and remove “criminal aliens” and undocumented aliens. A criticism of such programs is the chilling effect it can have on reporting crimes. If your spouse is being loud and threatening, for example, and you want the police to come to impose a cooling off period, and as a result your spouse is deported, this would result in a chilling effect on contacting law enforcement for help. An analogy would be if health providers had to report the immigration status of patients to ICE, people would be reluctant to seek treatment for communicable disease out of fear of arrest and deportation, thus endangering society in general.

I am personally not entirely persuaded by this concern. Accepting that being present in the United States without valid documents is a violation of the law and because the immigration laws mandate placing aliens with certain convictions into removal proceedings, it is hard to explain why law enforcement officials should ignore these laws when they encounter an alien in jail. Quite often an alien who is currently in removal proceedings for a conviction that occurred years and years ago will ask me why removal proceedings were not initiated when he or she first committed the crime or at other times when he or she was in jail.

What I find disturbing about the screening program is how it interfaces with the mandatory detention aspects of the law. Here is a typical scenario. An permanent resident who entered the United States as a child suffered a drug possession conviction in 1985, when he was, say, 19 years old. He is now 43 years old, has a good job, a U.S. citizen wife, U.S. citizen children, a home, and is active in his church. His “youthful indiscretion” is long behind him. Then, because of some aggressive driving he is arrested by the police and accused of drunk driving. He is brought to jail and booked in. The next day he goes to court and the charges are dismissed. ICE, however, screens him, discovers the 1985 conviction, arrests him, and places him in removal proceedings. Because of mandatory detention laws, he cannot be released from detention while his removal proceedings are pending. ICE asserts it has no discretion not to detain the alien.

The way these proceedings work, it could be well more than six months before he has his final hearing where he is allowed to ask for forgiveness for his 1985 crime and allowed out of detention. The cost of detaining this person for six months or more is astronomical. The impact on the man with the 24 year old conviction is extreme – no one to pay the mortgage or support the family, loss of a job, and great trauma to the entire family. Plus, he and his family must incur the expense of hiring representation in a removal hearing.

The impact on immigration enforcement is also acute. With jail space dedicated to a man with a 24 year old drug conviction and obviously a threat to no one and an abvious candidate for relief from deportation, people who more legitimately belong in detention cannot be held. Also, ICE officials, needing space to house aliens, end up shuffling aliens around the country to find a jail space. An alien arrested by ICE in San Diego ends up in Texas. An alien arrested in New York ends up in Louisiana. I once had a client who was moved from Virginia to Florida to San Diego in search of a space. Of course all that transporting of aliens does not come cheap. Plus, how does a family of a loved one in Virginia find a lawyer to represent their relative in San Diego? How does an attorney work with a family 3000 miles away?

Until mandatory detention laws are amended, programs like the ICE jail screening program are guaranteed to be a cost-benefit fiasco for the America.  November 13, 2009.


USCIS: Too big to not fail?

Sunday, November 8th, 2009

USCIS has a difficult job. It adjudicates immigration benefits. What makes the job difficult? First, the volume and scope of work. America is a large country and there are a lot of foreigners seeking lots of things – temporary visas, permanent residence visas, citizenship, work permits, travel permits, humanitarian entry into the United States, asylum, protections against deportation based on harsh conditions abroad, and on and on. The variety of different laws pertaining to each of these different types of benefits make simply keeping abreast of everything difficult. Second, the fact that new laws, regulations, and policies are enacted every day and new court cases interpret these laws, regulations, and policies, sometimes invalidating them and sometimes changing them, makes things very difficult. Third, immigration law, like most law, does not rest on a stable foundation of clear, easy-to-interpret law, but on a surf board of uncertainty requiring extrapolation and interpretation. Were the greatest minds in the country involved in managing this body of law, it would still be a difficult task. Finally, because of the concerns of national security, USCIS does not want to make mistakes that could harm national security or that could cause embarrassment – like issuing a visa to a dead person.

To cope with these challenges, USCIS is a huge bureaucracy. It collects small fortunes from customers to adjudicate benefits. The not-so-simple task of becoming a permanent resident based on marriage to a United States citizen costs $1365 in filing fees alone, and more if you count in medical expenses for a medical exam and vaccinations and photographs they do not even use. USCIS has also chosen to delegate different tasks to different offices around the country. Customers apply for some benefits in one place, say, naturalization in Arizona, or a battered spouse petition in Vermont, or family-based permanent residence in Chicago, or a travel document in Nebraska. These applications and petitions are then sent from city to city depending on their content, and often end up in the home city of the customer for an interview and granting of the benefit sought.

Let’s take the case of a person who is arrested by immigration authorities before he or she has filed their papers to become a permanent resident. The case is in the local immigration court. The foreigner needs to file for permanent residence and then ask the local court to dismiss the immigration court case so USCIS can adjudicate the permanent residence application. Follow the number of offices and cities involved. An I-130 petition must be filed by the U.S. citizen spouse. The petition is sent to a certain post office box in Chicago. From there the petition is sent to a town near Kansas City, Missouri, for processing, and then sent to another service center depending on work load issues. The permanent residence application has to be paid for by sending the filing fee to a town near Dallas, Texas. The application is filed with the local immigration court. If the case is closed, unless the court is willing to forward the application to USCIS, a new application must then be sent to Chicago, for forwarding to Missouri, and then forwarding to the local office where the foreigner lives. The office in Missouri schedule fingerprinting and photographing at local offices where the foreigner lives. Scheduling of appointments and requests for evidence are mailed from Missouri to the foreigner’s home and evidence must be returned by mail or courier to Missouri. Strict deadlines are imposed and all mail is presumptively properly delivered. Huge mail rooms must sort all this outgoing and incoming mail. Mail rooms are also presumptively error free. Ultimately, the petition filed in Missouri and then forwarded elsewhere and the application paid for in Texas and filed in Missouri, both must arrive at a local office where it is scheduled by a local office for an interview and a decision.

We immigration practitioners have become so used to this system, we don’t even question it any longer. But when I apply the process to another continent-size country, its absurdity is apparent. Think if you lived in St. Petersburg and wanted to become a permanent resident of Russia. Would you not think it Kafkaeque if you had to file a petition in Irkutsk and an application in Vladivostok and send a check to Gorky and hope everything is processed properly and an interview is scheduled in the local office in St. Petersburg. In addition to the procedural absurdity, think of the carbon footprint of the application, and petition shipped around the continent to end up where it all started. The big winner in this Byzantine process is obviously Federal Express.

Mostly, it works. The papers converge at the local office and the case is adjudicated. However, because of the disbursal of responsibilities all around the country and the complex procedures, the reticence of one office to step on another’s toes, and the inaccessibility of people with actual power to fix mistakes, it become very difficult to fix mistakes. Common sense cannot overcome the layers of bureaucracy and regulatory malarkey.

Here is a case in point. A describe a currently pending case. A foreigner who came to the United States as a student, fell in love with and married to a United States citizen. Before she married, she applied to extend her student visa. She did not hear anything from USCIS. She was then arrested by Immigration and Customs Enforcement for no clear reason. She was not detained long because it was obvious she could get a visa through her husband. Because after her arrest she was sent to immigration court, her husband filed a petition for her by mailing it to Chicago, then it was forwarded to Missouri and then to Laguna Niguel, California (in the OC). When the immigration judge heard that a student visa was still pending – and had given the ICE attorney six months to tell him what happened to the application, which the ICE attorney could not – the immigration judge terminated the court case. The foreigner then filed an application for permanent residence with USCIS in Chicago, for forwarding to Missouri, and then an interview in her local city. A petition costs $355 to file. Because her husband had already filed one, with the application going to Chicago she sent a copy of the petition and a copy of the fee receipt for the petition. When the case came to the local office, the petition from Laguna Niguel had not been forwarded. The local adjudicator had a complete copy of the petition as well as the petitioner sitting in his office and so felt confident to conduct an interview. He could not decide the case right away because he wanted some additional documentation about the petitioner – relevant to the I-130, which the U.S. citizen petitioner brought him the next day.

Because of the need for papers, the final decision was delayed. Before a decision could be made, the Laguna Niguel office, mistaken about whether fingerprinting was complete, denied the I-130 petition, asserting the petitioner abandoned the petition, two weeks AFTER the interview where the local office official worked on the case and took charge of the I-130 – even asking for more information so he could decide the I-130. As far as the couple was concerned, the case was all properly at the local office. Certainly, that Laguna Niguel also had the case would not cause a problem. Just tell Laguna Niguel the case was at a local office, an officer had already met with the petitioner, and the case was not abandoned. That is what the local officer did – he emailed Laguna Niguel and told them that the petition was wrongly denied, to re-open it, and forward it to the local office to consolidate with the copy in the applicant’s file. Even when dealing with a medical insurance company, the current archetype for an evil bureaucracy, if you pointed out that a procedure you were billed for was never done, the insurance company would straighten out the problem with little difficulty.

The interview took place about two months ago. I, the attorney for the couple, went to the local office last week to ask when the case would be adjudicated. [It used to be an attorney could email a specially trained officer who could look into these problems and resolve them. Now, an attorney must go online and make an appointment and travel to the office and wait and then speak to an information officer, who may or may not have any understanding what you are talking about. If not, as happened with this case, the case may be referred to an information office supervisor]. The response I got was quite rich. The local officer sent the email and is still waiting for a response. All we can do is wait. I need to address all further inquiries to Laguna Niguel.

I went back to my office and tried to reach Laguna Niguel. It used to be one could reach Laguna Niguel directly. Now, a more circuitous route is necessary. One calls an 800 number, the National Customer Service Center. Its actual location is not disclosed on the website. The only clue I have is that the operators all sound like they could have been in Shake and Bake commercials a few decades ago. I called the number and it what I thought was a stroke of luck, the phone call was forwarded to Laguna Niguel where I spoke to an information officer.

What she said was even riche than what I heard at the local officer earlier that day. The case was properly denied. The officer in the local office should have requested the file with the petition from them instead of adjudicating the case without it. The ONLY way to reopen a case is to file a motion to reopen. It requires a filing fee of $585. The motion must be filed within 30 days of the case being denied. They probably will not reopen it without the motion to reopen form and fee, and because it has been more than 30 days, will probably deny it because of lateness no matter how obvious it is that USCIS wrongly denied the petition. It is possible that filing the motion late and without the filing fee could result in reopening, but the officer made it clear from her tone that it was about as likely as Brad Pitt ending WWII by blowing up Hitler in a Paris movie theater. She also noted that her computer system indicates that the file that only Laguna Niguel can reopen is now at the local office with the adjustment file.

So here was the Catch 22. The local USCIS office requested the Laguna Niguel office reopen a case because it wrongly denied for abandonment while the case was being handled in the local office. Laguna Niguel will not reopen, despite its manifest error, unless a Motion to Reopen is filed, but a Motion to Reopen cannot be filed because it is too late.

Now it is time to be creative. I got back in touch with the local office. Suppose, I suggest, in an email, I file a motion to reopen with the local office without a fee because of obvious “Service Error” or I just pay $355 for the duplicate I-130 in the file. It is worth noting that a motion to reopen a case costs $585 but the case itself costs $355. It would be like if Earl Scheib charged you $585 to fix a crummy paint job but $355 to re-do the whole thing. In reality, however, if the Earl Scheib shop in Bogalusa, Louisiana, concluded that the Earl Scheib store in Laguna Niguel crapped up a paint job, the Bogalusa shop would probably just fix it and spare the customer the internal politics of who would pay for the paint and labor. I would add that it takes no paint and just a few key strokes of labor to reopen a petition.

There are some problems with this. Local offices are constrained about taking filing fees. An I-130 filing fee must be paid in Chicago. Chicago won’t take a fee without a petition. Does that mean a new petition must be filed in Chicago? If so, will the petition be forwarded to the local office or back to Laguna Niguel? Just because I ask for it to be forwarded to the local office does not mean it will be. In fact, my request will have no impact at all. Will Laguna Niguel forward it to the local office or just deny it again? Same for the Motion to Reopen? They are supposed to be filed where the case was denied. Will the local office take it anyway? Can they reopen a case denied in another office? If the Motion to Reopen is sent to Laguna Niguel will Laguna Niguel request the file from the local office and separate the now-united file or will they simply deny it because it is late or has no fee. As of now, there has been no response to my email.

In a world where a manager with authority is readily available to untangle messes, this mess could be untangled in moments. In a world with a sprawling bureaucracy, rigid rules, and little access to people with actual authority and communication is only with powerless information officers and call centers in undisclosed locations, even an easy-to-solve mistake becomes an awful bureaucratic headache. I’ll keep you posted on the outcome. November 8, 2009