USCIS shuns assistance in administering laws too complex to get right.

Sunday, October 4th, 2015
By: Jonathan MontagJ.D.

I have a small law practice. A minuscule fraction of the cases that the San Diego USCIS district handles are my cases. When, in one week several mistakes come across my desk (not just my cases, but people coming to consult), I seriously wonder if the immigration laws are too complex for the agency to administer. That is not necessarily a dig at USCIS, but all bureaucracies that must handle laws that are updated all the time creating new policies and new definitions that the agencies must implement and then remember. That crazy little change in one corner of the law twelve years ago that required several memos to explain is still applicable today and an adjudicator should know about it even though there have been hundreds of little changes in hundreds of corners – and the same corner – that adjudicators also must know about that have been made since.

Just this week I have seen the following:

1. USCIS granted someone permanent residence and then rescinded it on its own motion, despite a section of law and a body of regulations and administrative decisions that make unilateral permanent residence rescission impossible. See, INA § 246.

2. USCIS decided that a person who entered in F-1 status accrued unlawful presence when he stopped going to school when unlawful presence is defined as overstaying a period of stay authorized by theAttorney General and students do not have such a period of stay. USCIS policy memos and manuals make this clear. See, INS § 212(a)(9)(B)(ii).

3. An adjustment of status was denied for an amnesty applicant because of committing two crimes of moral turpitude when under the program, unlike most other adjustment programs, a separate basis for considering criminal convictions and inadmissibility applies and two misdemeanors are not a disqualifier. See, INA 245A(a)(4)(B).

4. USCIS is not allowing a person to continue with applying for permanent residence based on the petition from a parent because the parent became a U.S. citizen, when the law allows for this not to cause a delay through an opt out provision, but USCIS has no policy or procedure to invoke the provision. See. INA § 204(k)(2) (mis-cited in correspondence from the State Department).

Here’s the mystery. Everyone knows the law is complex – not hard to understand like mathematics or quantum physics – just that there are wrinkles to nearly every little thing and they matter. Anyone can overlook something some time. The mystery is USCIS has no mechanisms to correct these things. While you or I might wish we had mechanisms to point out errors to us (Hey, you forgot to enter that check into your ledger! Hey, you forgot to deduct your donation to the Met from your taxes! Hey, you missed your exit and need to turn around!) USCIS, which has these mechanisms in the form of represented clients, does not take advantage of them. There are sometimes expensive reconsideration processes and sometimes expensive appeals processes, but USCIS is hugely resistant to processes like being able to call the person stepping on it or calling the agency’s lawyer and saying, “Hey, you and your agency are stepping on it.”

People who are unrepresented are screwed when the agency makes mistakes. They don’t know the law. They abide by decisions they think are coming from a dependable source. A good lawyer, on the other hand, can point out the mistake and cite to the law or regulation or policy being violated. A good agency would be happy to receive and act promptly on this information and learn from the mistakes. That’s what we need. Posted October 4, 2015.


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