On August 6, 2015, Brian M. O’Leary, the Chief Immigration Judge, the head of the immigration judges,  and Riah Ramlogan, the Acting Principal legal Advisor for ICE, ICE’s head of its immigration court prosecutors, both issued memoranda regarding prosecutorial discretion, here and here. While it may be coincidental, two memoranda on the same day from different agencies at different federal departments (ICE is part of the Department of Homeland Security and the immigration courts are part of the Department of Justice) certainly send a strong message – prosecutorial discretion in the immigration courts is alive and well. Ms. Ramlogan’s memo instructed her attorneys to have evaluated before all hearing  every case on the docket for the feasibility of exercising prosecutorial discretion in the case. Mr. O’Leary’s memo instructed immigration judges to ask about the feasibility of exercising prosecutorial discretion in each case on the docket. Previously, immigration judges were giving aliens in the court system time to seek prosecutorial discretion and ICE attorneys were evaluating cases usually only after pitches to exercise the discretion were made to them.

Prosecutorial discretion policies in the immigration court context were implemented in 2011 and strengthened in memoranda such as this one from the director of ICE on November 20, 2014, when President Obama announced initiatives to defer action to remove law-abiding undocumented aliens with permanent resident or U.S. citizen children (DAPA) and more children than were eligible for an earlier program initiated in 2012, who entered the United States before age 16 (DAPA).

The DAPA and new DACA programs have not yet begun because of pending federal litigation which I have discussed here. When a federal district court judge enjoined the implementation of DAPA and the new DACA, stories began circulating that ICE was no longer honoring the existing prosecutorial discretion programs. The twin April 6 memos make clear that the prosecutorial discretion programs in the immigration courts are still in force and in fact the implementation must be more thorough.

While to some the program seems only like a way to grant amnesty to illegals and in a way it certainly is, it is also necessary. As Mr. O’Leary writes in his memo, there are 429,000 cases pending in immigration courts. More are pending on appeal. The court system cannot deal with this many cases. There are three ways to solve the problem: 1) Speed up the processing of each case; 2) increasing the number of prosecutors and immigration judge; or 3). Reducing the number of people subjected to removal proceedings.

During the George H. W. Bush years, the solution was #1, speeding up the processing of each case. Immigration judges were exhorted to meet completion deadlines and quotas and the BIA began a process of summary adjudication of appeals. The result was not a reduction of the backlogs and led to due process challenges to unfair process. It turned out that the problem was not lollygagging immigration judges, but a system that could not move faster while doling out justice fairly. Solution #2 means Congress must allocate more money to the immigration court system, but Congress won’t do that. Thus the only answer is 3) reducing the number of people subjected to removal proceedings by not proceeding against low priority aliens.

Just as examples of the problem are cases that have crossed my desk this week. An alien in removal proceedings in San Francisco was recently scheduled for a hearing in his case in February 2018, more than three years from now. If his case does not get completed on that date, God knows when it will be continued to. An alien in San Diego who came to the country fleeing persecution in September 2014, will not be able to file his asylum application until November 2015, as his case has been postponed twice because the immigration judge was detailed for more important cases in other cities. God only knows when his actual hearing will be. A system that countenances such delays is not tenable. Doing nothing will mean actual bad guys will get to remain in the United States for years and people, like asylum seekers, will wait years to finally remove the specter of being returned to bad fates in homelands they have fled. Triage is necessary and that is what the prosecutorial discretion program provides. Deciding immigration cases should be in the hands of men and women. Scheduling should not be left to God. Posted April 12, 2015.

Published Apr 12, 2015 - Comments? None yet

Every adjudicative body I have ever dealt with, from government agencies to the Supreme Court, provide proof of filing documents. Today I met the exception. I delivered documents for a case as requested by USCIS to the San Diego USCIS office. I gave the packet to an officer at a window. I brought two copies – one for him and one for me. I asked him to stamp or otherwise verify on my copy that he received it. He said that USCIS does not do that anymore. “He is not allowed to!,” he said (exclamation point added). He showed me a little green log book he was logging the submission in and that served as the proof of my delivering the packet.

If this is indeed a new policy, then it is a very stupid policy. If in a few weeks USCIS asserts it did not receive what I hand-delivered today, how can I prove that I delivered it? How do I know what he wrote in the little green book? If it is not the policy not to give proof of receipt of documents and some Tucker Carlson-looking guy is making things up, then educate him and show him how to use the receipt stamping machine. Also, monitor him to make sure he is not making all kinds of other things up.

Don’t worry, you say. If you delivered it, USCIS has it and everything will work out. That USCIS misplaces documents is a given – everyone has been known to misplace documents. USCIS even has a regulation, 8 CFR § 103.5(a)(2)(ii), contemplating losing or overlooking evidence. Why remove a simple and commonplace protection for customers of USCIS? Riddle me that, USCIS. Posted April 3, 2015.

Published Apr 03, 2015 - Comments? None yet

For 4 years, from 2009 to 2013, Alejandro Mayorkas was the Director of U.S. Citizenship and Immigration Services (USCIS). This was not a glamor position highly coveted in government. It meant taking over a portion of the former INS which was split into three parts and moved to the Department of Homeland Security in 2003. Two of the parts, Immigration and Customs Enforcement and Customs and Border Protection, were the law enforcement portions of the former INS, while USCIS was the benefit-granting agency. This was the agency that approved petitions recognizing employment and family relationships and granting waivers for immigration and criminal law violations. In the post 9-11 environment in the United States, USCIS could never get the public’s praise for allowing foreigners into the United States with more speed and efficiency, but would take the blame for allowing for foreigners to be granted status in the United States who ended up doing harm. Mr. Mayorkas went into the job anyway and faced all kinds of bureaucratic obstacles with little hope of praise for success, but with expectation of blame for whatever might go wrong.

USCIS needed fixing. Mr. Mayorkas understood that he was running a federal agency that was enforcing the law when it administered its programs – the laws about granting petitions and waivers allowing for status in the United States – but the agency’s methods defied the consistency one expects when administering the law. Administration was arbitrary and the rules were hard to ascertain, and what rules were explained to the public, were usually explained in multiple memos with little authoritative value. Workers in the agency could show great flexibility in administering the law, which the courts of appeal often felt compelled or at least inclined to defer to.

To solve this problem, Mr. Mayorkas set out to assemble all the memos and later to abandon the memo system for a serious of policy manuals for the public, still a work in progress. He began posting memos, even older memos attorneys would struggle to locate, to the public and invited comment on memos before implementing them.

He also found an agency with hopeless backlogs and limited opportunities for customers to learn about their cases. He implemented systems so users of the system could have a better idea about the status of their cases despite the huge technological and bureaucratic obstacles in his way.

He also, from time to time, put common sense into the system. An example – everyone calls permanent residence cards green cards. Everyone, of course, except USCIS, which refused to make them green and instead called them “permanent residence cards,” or, more cryptically, “I-551’s.” Mr. Mayorkas made them green and let the term the world used for them, Green Cards, be the word for them.

Was he completely successful? No. USCIS, in the area of marriage adjudications, has gone from bad to its arbitrary worst in determining what a valid marriage is. More policy manual work needs to be done than has been done. Regulations still need to be written for some very old laws. Adjudications still have the air of arbitrariness. Case status information is often sketchy and far too many cases still languish for years. The asylum system is imploding with cases pending for years without interview and customer service in the asylum sphere more what one would expect in the poorest developing country that the world’s richest. The goal of a paperless agency is more of a dream than ever despite the billions tossed at the project. Yet anyone who encountered Mr. Mayorkas could tell he knew there problems and was working on them every day. The President must have noticed his hard work, principles, and dedication, as he nominated him and he became a Deputy Secretary at the Department of Homeland Security.

Mr. Mayorkas would come and talk to immigration lawyers at their annual conferences. He would go into the lions den and explain what he was trying to do.  Immigration lawyers had faith in him – not that he was going to give away the store – but that he was tying to make the store a coherent place to enter and shop in. At one conference, he discussed his efforts at increasing customer service systems so customers could learn about their cases. He expressed his dedication to the concept of equal access. All users should be able to ask about their cases and get answers. It should not depend on hiring the attorney with the best Rolodex to get a stuck case moving. His general counsel, recruited from the private immigration attorney bar,  told a conference crowd that she would not answer calls from her old immigration attorney friends for help with their cases as Mr. Mayorkas wanted a transparent agency where all users had access to problem solving.

Ironically, this is where Mr. Mayorkas is now being burned – for taking phone calls and helping move along cases from prominent people who had his phone  number. The assistance came in cases involving the EB-5 (Employment Based Immigration Category 5) program, the program that allowed foreigners to invest a million dollars and get a green card. This was a program that was faltering. The bureaucracy was not implementing or administering the program. In a time of recession, the White House wanted to encourage entrepreneurship, investment, and job growth and USCIS was dropping the ball. Mr. Mayorkas took a great interest in trying to make the program work for everyone. Ironically, a program that he was making special efforts to make work was the one he is now criticized for meddling inappropriately in.

Some things should be clear about meddling. Meddling by an official may smell of corruption, but corruption requires more than meddling, it requires profit. Had someone given Mr.  Mayorkas a stack of $100’s to move a case, then you have corruption. Then you have a crime. Otherwise, what you have may not be fair, but is part of the way the system is run. Everyone knows it. It may be unavoidable. Does knowing a cop help avoid a ticket? How about having a Police Benevolent Association sticker on your car? Does giving a donation to a politician help get access? Does a donation help get an official to make a call for you or your company? Rhetorical questions do not need answers.

USCIS’s operations were run for many years by a man named William R. (Bill) Yates. Before there was USCIS, he ran operations for the INS. The man knows a lot and I am sure has quite a Rolodex. He also has a consulting company. Do you think people hire him for his expertise in how USCIS operates now – he retired in 2005 – or because of the Rolodex? Heck, Eric Cantor, who had Frank Underwood’s job as the whip in the United States Congress lost his job when he lost his election. A lawyer with real estate training, Mr. Cantor went on from being whip to becoming the vice chairman of investment bank Moelis & Company at a compensation of $3.4 million. Is this because Eric Cantor is a whiz bang investment banker or because of his Rolodex? Another example, Trent Lott resigned from the Senate where he was the minority leader and majority leader after praising Strom Thurmond and lamenting that Strom’s segregationist views were not followed. After leaving the Senate he became a high priced lobbyist and think-tanker. Do you think this was because of his amazing intellect or his Rolodex?

Former immigration attorneys who went into high levels of government service and now are back in private practice describe their former positions prominently in their websites, like here and here and particularly mention their involvement with the EB-5 program.     Do they promise access at high levels to their clients? No. Do they make it clear they have a Rolodex – the result of high level service? You bet they do.

None of these people are doing anything wrong. In America, people pay for access. The Koch Brothers are not paying to make the system better for everyone other than in some abstract sense. They are buying access to get America to assist them in achieving their goals. It is not for anything other than money that Republican presidential aspirants engage in Sheldon Adelson horse and pony shows.

No one is accusing Mr. Mayorkas of corruption. He is accused of answering his phone when prominent people were calling and then asking why their cases were delayed or denied. My clients’ Congressmen, at least some, do that for their constituents. Is a call from Mr. Mayorkas more likely to unstick a bureaucracy than a call from my client’s congressman? Certainly. Would it be better if no one needed to make such calls on behalf of others? Yes. Would it be better if money did not buy access? I say, “Yes,” but this is not how America works. It may have once been an aspiration, but it is not even that  anymore.  Posted March 29, 2015.

Published Mar 29, 2015 - Comments? None yet

This is the internet age. If you want information, directions, advice, go online. If you want to access government information, go online. Suppose a person wants help with immigration services. A person in the know knows that USCIS provides all kinds of information and free forms online. A less savvy person may not even know the name of the organization, USCIS, but this being the internet age, still turns to the internet for help. Step one, search for help. An internet search on Google of “USCIS” gets one to this right on top – first entry:

USCIS Forms – US-Immigration.com

Google “immigration department” and you get this as the first entry:

Immigration Department – US-Immigration.com

It seems like you’ve found it. Here’s the site.

It’s got flags, the statue of liberty, a U.S. passport, and links to everything, including forms. Clicking on the first form listed, the Form I-90, and after some questions, you learn that for $170 you can get the form — a form that is free on the actual www.uscis.gov website.  Bing is even worse – three imposter websites as first hits for “USCIS.”

Is there any clear disclaimer or indication at the top of the website that it is not a government website? No.

Do the owners show you their pictures and explain that it is a private, for profit site? No.

Is there fine print that these are not a government sites? Yes. Are there tell-tale signs that these are not government sites? Yes. However, it is manifestly clear that these sites’ sole purpose is to mislead people to think they are at the actual USCIS website to rip people off, to trick people who happen onto the site to pay for things that are free elsewhere.

Suppose you innocently type in the URL, www.uscis.com instead of www.uscis.gov? Guess what you link to? The same charlatans.

USCIS ripoffs are not the only ones. Call the Clark Court Nevada telephone number and you will get a bewilderingly long and complex phone message about court services. A reference is given to website: www.clarkcountycourts.us. (.us?). Type it in and you are taken to a website where a vast array of information, including all kinds of computerized court record information is available for free. Type it wrong – drop the s in courts, and you get to this site http://www.clarkcountycourt.us/ – an imposter site that will charge you for the information the real website provides for free.

I don’t know how many times people have come to my office and told me about filing applications online thinking they filed with USCIS, but instead were tricked and gave money to charlatans or how many times I told people that they could get a form for free online and then was told that I was wrong, the website required payment?

It is amazing to me that disguising a website as a government website to trick money out of people is not a crime. Likewise, it is amazing to me that making buckets of money directing searchers to imposter websites is not a crime. It is also amazing to me that USCIS or Clark County or any powerful government entity having its stakeholders ripped off does nothing about it. But it most amazes me how people can do things like this in the first place. Posted March 22, 2015.

Published Mar 22, 2015 - Comments Off