USCIS’s fraud investigation zeal rendering the Howard Memo obsolete.

Sunday, October 23rd, 2011
By: Jonathan MontagJ.D.

United States Citizenship and Immigration Services, at least in San Diego, where I practice Immigration Law, in its zeal to investigate fraud and to find reasons to deny cases it adjudicates, is putting in doubt the worthwhileness of using the Howard Termination process to resolve cases for people who find themselves in removal proceedings. The Howard Termination process is based on an October 6, 2005, memorandum, the Howard Memo, from Mr. William J. Howard, Immigration and Custom Enforcement’s (ICE) principal legal advisor at the time, wherein he said in cases where it is easy to approve an adjustment of status case pending in immigration court, it is more efficient for the immigration court to terminate a case and let USCIS adjudicate it more quickly and efficiently. The theory is that the Office of Chief Counsel from ICE can examine the facts of the case, and if it determines that the case is easily approvable, informs the immigration judge that the case should be terminated based on the approval of the parties and the independently determination of the immigration judge. The idea is that it is easier for the chief counsels, the alien, and the immigration courts to move the case to USCIS. When the memo was written, ICE was dominant in having the legal expertise and the investigatory ability to make determinations about whether the case was “easy to approve. Since then, USCIS has developed its own investigators, Fraud Detention and National Security, FDNS, and they have become very zealous in investigating cases.

When ICE and USCIS were all part of INS, they had the same goals and policies and common administrators, particularly at the local level, the local districts. Now, they are separated. The managers at the Department of Homeland Security are very remote from the agencies at the grass roots, the local offices. USCIS seems no longer willing to rely on the judgments of its counterparts at ICE or the immigration court, the judges who determine whether a case is easily approvable. Instead they want to investigate and decide all over again.

I have several cases pending now before the local USCIS office that were terminated under the Howard Memo because the cases where easily approvable, and they have been held up at USCIS for months and months. In hindsight it might have been more expeditious to have the immigration judge decide the cases notwithstanding the substantial wait times to get a final hearing in immigration court, rather than waiting for USCIS to adjudicate cases that were already pre-adjudicated by ICE and the immigration court, and sometime by USCIS itself, and were determined to be easily approvable.

In one case currently pending case, USCIS decided it wants to do its own investigation of fraud in a marriage, even though USCIS itself earlier determined the marriage was a valid one in a separate adjudication and ICE chief counsel decided the case was worthy of termination because it was easily approvable.

In another case, a client had a minor crime, which the USCIS adjudicator believed was a bar to adjustment, even though it is not, as discussed, here. Despite ICE Chief Counsel’s concluding that the conviction was not an impediment to adjustment of status and that case was approvable and despite an immigration judge’s concurrence in this evaluation, the case remains tied up because of USCIS’s zeal and ignorance while its own legal eagles reinvent the wheel  – a process that should take ten minutes but is taking weeks.

In another case, USCIS is holding up a case because of skepticism of eligibility to adjust status where an immigration judge concluded that the person was eligible after taking the testimony of witnesses who were examined and cross-examined before a determination was made. ICE’s chief counsel agreed that the person was eligible and thus agreed to terminating immigration court proceedings. USCIS now is apparently conducting its own investigation despite the conclusion of the judge agreed to by ICE Chief Counsel, which would ordinarily be considered “the law of the case.”

In another case, a decision is being held up for no reason at all despite ICE’s agreement that the case was easily approvable after an interview where the USCIS examiner quickly concluded that everything was alright and the case was approvable.

After the French Revolution, the institutions of the monarchy were destroyed and new ones were created. In their zeal, revolutionaries launched a reign of terror that killed many revolutionaries themselves. Pundits fear that after successes in the Arab Spring, old institutions will be dismantled and new ones will emerge that will prey upon the people. In Iraq, we saw after the U.S. invasion and the destruction of Saddam Hussein’s institutions, new institutions were formed that created a reign of terror in Iraq resulting in civil war, widespread human rights abuses, and the widespread use of torture.

In Afghanistan, the U.S. and international institutions have dismantled pre-exisiting institutions and the new ones are involved in systematic torture.

What USCIS is doing does not rank as extreme as in these cases, but the creation of new investigatory organizations with new administrators, new employees, new policies, and new techniques to find fraud with fanatical zeal untempered by institutional maturity, experience, and perspective are grinding the system to a halt.

Milton Friedman, the Nobel Prize winning economist, first came to fame not for his theories on monetary theory, but for his devising of methods of quality control testing for wartime industries in the United States. He devised ways of test sampling military arms and equipment to increase the likelihood that munitions and equipment would be of high quality without checking each and every item produced, which would have been expensive and not practical considering the need for the equipment.

USCIS used to have similar control mechanisms, now it seems every case has to be thoroughly examined up and down and in and out. While in and of itself, perfection is always a goal, just as in the case of military production, you can completely logjam the system through overzealous inspection. Here too, if officers are satisfied, if ICE officers and attorneys are satisfied, if immigration judges are satisfied, then it seems neither efficient or fair to delay adjudications of cases for months and years because newly formed investigatory bodies and new employees have decided that their concerns outweigh all the other evidence and the other concerns of USCIS, such as efficiency, customer service, and fairness.

You see it, too, in the current rage of investigating marriages for fraud by intense interviewing of couples. While certainly no fraud should be tolerated, when USCIS devises a test to examine for fraud and then ignores the positive results of the tests to conduct more investigation (or at least more delay), the test is shown to be a sham. Nowadays, USCIS, when suspicious of the bona fides of a marriage, may separate a couple and grill each member of the couple for hours about all the details of their lives and relationship. Afterward, when the results are compared and 99.9 percent matching, instead of outstretching a hand of congratulations because of faith in their own trial by ordeal, the decision is still delayed. I have witnessed and colleagues have reported to me many cases of clients who were remarkably identical in their answers about their lives, their experiences, the nature and history of their relationships, including intimate details, whose cases are not decided or even denied. This is becoming a more and more serious problem.

Another facet to this problem is while immigration judges have a responsibility to move cases along and ICE has to accommodate the schedule of the immigration court or otherwise process the flow of new detainees into its systems or else risk a huge backlog of aliens to process that they cannot detain, and Customs and Border Protection has to quickly make its decisions about admission or else the borders lock up, USCIS seems to have no pressure on it to resolve cases in any particular time frame. While they do publish processing times and the agency has its goals, the excuse for not concluding a case that it is subject to “administrative processing” or “FDNS investigation” means any expectation that USCIS will comply with its processing time for the particular case is completely misplaced. ICE and CBP usually  do not want to unlawfully detain or unlawfully violate their regulations about speedily processing cases, but USCIS seems to have no compunction about lengthy delays in its adjudications.

There is a saying that you don’t want to sacrifice the good for the perfect. In the case of USCIS’s zeal to fight fraud, it is sacrificing a great deal of progress in adjudications because of its overzealous investigations of fraud unbounded by the common sense of established institutions, faith in its own processes, and a sincere desire to be fair and timely. The result is that innocent people are terrorized by endless limbo in regularizing their immigration statuses. When the stress of the investigation and the delays tears a couple apart, I expect USCIS will use it as proof that the relationship was a sham ab initio. That is a reign of terror. Posted October 23, 2011.


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