USCIS slipping into crisis.

Sunday, September 17th, 2017
By: Jonathan MontagJ.D.

In dealing with the government, there are two principal ways of dealing with it. One is dealing with whatever agency you are dealing with according to its rules and its systems. The other is through litigation. We all deal with the government the first way all the time. We file are taxes with the IRS using its forms, following its rules, and mailing or emailing or otherwise filing the way they say. We renew our drivers licenses or register our vehicles with DMV with their forms and instructions and visiting its offices as they instruct. Mainly, things go well. When they don’t, we follow their review procedures or use their inquiry or re-evaluation processes as they instruct.

Attorneys deal with the government when things break down far more than the usual government customer or user – what they call their stakeholders. People hire attorneys to assist with normal processes because even normal processes are cumbersome and convoluted – not because agencies are sadistic or oblivious to the complexity of their processes, but because lawmakers create laws on top of laws and courts create laws on top of laws that government agencies must implement. This requires systems and rules on top of systems and rules. The new laws are often unclear as to how they are supposed to be implemented. Then government adjudicators have to apply new the new laws and the old laws to your facts creating at times a stew of confusion. Is a 25 year old government employee new at his job able to parse 100 years of laws, court decisions, regulations, and policy directives and seamlessly make correct decisions? Is his supervisor? Does the agency even know the correct decision in all cases? No, no, and no. This is hard stuff for the government and for the stakeholders. This, in addition to occasional malfeasance and incompetence is how mistakes are made.

When all the processes and procedures take their course and the agency and the stakeholders reach an impasse, an option  is litigation. People generally can appeal to the courts to straighten out when things appear to go haywire. In litigation, the rules are stacked against the stakeholder – while stakeholders have a right to due process, due process is limited. Not every action of the government affords a right that you can sue to vindicate. Many lawsuits are dismissed because a person who feels wronged by government action has no right to vindicate. For example, suing a United States Consulate for denying a visa is mainly a fool’s errand because people abroad do not have a right to a visa. Lawsuits are dismissed because the amount of due process is limited. Legislatures can limit the authority of a court to consider an issue. Courts can limit the amount of litigation that a wronged stakeholder can pursue. Additionally, courts defer to the rational decisions of an agency even if a competing interpretation is a better one.

Despite the uneven playing field, litigation provides one big advantage over directly dealing with the agency. Litigation in our system is adversarial, but ironically, it affords a benefit to participants in it that dealing with an agency directly through its systems does not – communication. Agencies are allergic to direct communication with stakeholders. In litigation, except for when national security or government secrets are involved (which is not uncommon in the immigration realm), the agency must communicate with the stakeholder. Complaints must be answered and agencies often have an incentive to correct mistakes rather than trying to defend them and risk having a court – whose decisions are available to the public – broadcast to the world an obvious government mistake – a government perpetrated injustice.

Agencies have public affairs offices which reach out to stakeholders. They often try to give the appearance of wanting actual communication with stakeholders. I myself worked in such an office many years ago. Often agencies are sincere in their interest in open and honest communication. Often they are not. It is hard to say why? It could be they see it as a waste of resources to deal with individuals as individuals. Agencies dole out millions and millions of benefits a year and make millions and millions of decisions. If individual phone calls or letters or explanations had to be made on even a fraction of them, it would consume a lot of resources. It could be because agencies are reticent to give special access to squeaky wheels. If a person hires an attorney to rectify a problem, is it fair to the bulk of people who do not hire attorneys? It could also be because agencies are arrogant and don’t want to be second guessed. “This is our decision. If you don’t like it, lump it.”

USCIS is an agency that makes millions of decisions affecting millions of people. It has to apply complex laws with layers of new laws on top of old laws on top of court decisions to a myriad of unforeseen fact patterns. They have public affairs offices that purport to reach out to stakeholders. Their mission is complex. Their resources are scarce. They don’t want to favor the represented over the unrepresented. And they are arrogant. Recent experiences reveal an agency that invites openness but doles out dismissiveness, deception, delay, and denial.

USCIS is facing new challenges. It now must interview all employment-related green card cases at local offices.  Do USCIS officers at local office officers understand business immigration? No. Do USCIS local offices have the capacity to handle a huge new workload? No. Their processing times are getting longer and longer. It is taking a year to approve renewals of green cards. Can you imagine if renewing your driver license or replacing your credit card took a year? Removing the conditions on residence is taking a year.

In both of these scenarios, customers will need to go to a USCIS office to extend their current green cards because of the delay. There have been few or no appointments available at the San Diego USCIS office for the last two plus weeks. How are thousands of people going to get their proof of permanent residence so they can work and travel in light of these crazy processing times and unavailability of appointments? Work permits are taking longer and longer and travel permits as well. USCIS will become more and more bogged down answering inquiries and handling emergency travel needs. When USCIS processing times for green cards extends past one year, medical reports will expire and customers will be straddled with an additional hefty expense of providing a new medical report just because one sat in a file for a year. This will cause more delay as well as files will have to be handled over and over.

USCIS should not just give the promise of openness and fairly and efficiently serving their customers, who by the way, pay for the services. Renewing a green card costs $530  – renewing a California Driver License costs $34. The alternative, ultimately, is litigation where then USICS will have to explain why their processes and decisions are fair and in compliance with the law or argue that its customers don’t have a right to good service and due process at all. Posted September 17, 2017.


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