Welcome to Angelo Paparelli's new immigration blog, courtesy of ILW.COM. My hosts, Sam Udani and friends, may not realize it but they've given me a wonderful way, not merely to vent my frustrations with America's dysfunctional immigration system, but also to avoid psychotherapy. The immigration-related outrages we immigration lawyers and other patriotic Americans see every day can lead to a host of psychosomatic maladies -- dyspepsia, high blood pressure, stress-induced anger and tears, neurosis and who knows what else.
This blog, therefore, will serve for me, and I hope for you, as a holistic form of therapeutic wellness. When I comment upon, or you share, the next new perverse, ironic, laughable, tragic or just plain stupid immigration development, let us openly call it what it is, and offer a suggested solution. Let us help cure the body politic as we recall the wise counsel of Supreme Court Justice Louis Brandeis:
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.
I'm clearing my desk to get ready for travel on Wednesday to Vancouver. That's of course where the American Immigration Lawyers Association is holding its annual conference. One of the panels will be an open forum with the U.S. Department of Labor (DOL).
As most in the immigration world know, the DOL is very concerned about fraud in the immigration process. No ethical employers or lawyers would deny the importance of deterring fraud, and truly bad apples of course need to be removed from the barrel.
But when DOL targets reputable lawyers and law firms and audits all of their clients for alleged conduct that the agency belatedly acknowledges is within the proper scope of the attorney-client relationship, then the objective of fraud-deterrence is actually impaired rather than facilitated. Moreover, when the agency in the name of "program integrity" or "reform" seeks to minimize the role of lawyers, while continuing to promote a deeply-flawed PERM system and tolerate a role for unlicensed agents (consultants and notarios), then something is definitely wrong in Bureacracyland.
For background on the controversy, check out today's article, co-authored by Ted J. Chiappari and me, in the New York Law Journal's "Immigration Column," available at this link on my other blog - www.nationofimmigrators.com. (By the way, the Merriam-Webster Online Dictionary defines "tizzy" as "a highly excited and distracted state of mind." After reviewing the article, you, dear readers, can decide if the label is apt.)
So, if you're heading to the DOL Open Forum AILA panel in Vancouver, maybe you'll think of a polite question or two for the DOL representatives.
I lost a great friend this weekend, Steve Fischel, but America lost a patriot. Stunned and tearful as the news of his passing spread, I walked aimlessly through the Vancouver Convention Center last Saturday afternoon, realizing in awe how many AILA members likewise cherished a close friendship with him.
Steve and I were to share an EB-5 panel last Wednesday, but he never made it. A passenger on his flight took ill and the plane was diverted. His last emails to me were classic Steve. He wrote to be sure we both were ready so that we would give our audience good value. In reply I'd emailed him my portion of the presentation on best practices in EB-5 risk management, ironically entitled: "Stress Relief and Blissful Sleep." He replied by email: "Thanks. This is helpful. Look forward to see you. S"
I never saw Steve at the AILA conference, but learned right away that he had been felled by a ruptured aortic aneurysm as he sat chatting with friends.
My loss, even when amplified by the heartfelt grief of so many of Steve's friends in AILA and his colleagues in government, does not tell the full story of America's loss of this marvelous fallen patriot. Steve served honorably and well in the State Department for 31-plus years, but we in AILA first came to know him in 1981 as he articulated eloquently the Department's positions on a host of immigration issues. Unlike so many of the current crop of government officials who administer and enforce the immigration laws, Steve appreciated and respected immigration lawyers. He saw us not as adversaries but as participants in a legal process that brought profound blessings to America. Steve, like other officals of his era (Cornelius "Dick" Scully at State, and Jackie Bednarz and Larry Weinig at INS -- all thankfully still alive), believed that his job was to help lawyers, newcomers and veterans alike, understand the immigration law and the government's interpretations. He never had an axe to grind; his approach was always to achieve the correct legal answer and the just result.
To be sure, we didn't always agree, especially on consular nonreviewability, but I never walked away from an exchange with Steve feeling that he'd denied me a fair hearing or a thoughtful response. With a twinkle in his eye, a wide smile and a deadpan, comedic retort, Steve could joust with the best of us.
He made a great, positive impact on immigration law, helping to craft the NAFTA TN provisions, improving the J-1 waiver process, and reconciling the conflicting E-1 and E-2 interpretations of INS and State, to name but a few. And then he retired from State, the deserving recipient of awards aplenty, and crossed the aisle to practice immigration law, always with success and gusto. The American Immigration Law Foundation, which he served as a member of the Board of Trustees, awarded him its Distinguished Public Service Award in March 2006. The video of his acceptance speech will bring a tear or several to your eyes but it's worth watching.
Although most Americans and millions of immigrants to our country may never have known Steve, his impact on their lives, the benefits he helped confer, the American Dreams fulfilled with his aid, will be remembered sadly and proudly by all of the many close friends who mourn his passing.
Although your life was cut short, you can now enjoy stress relief and blissful sleep. May you know, in the words of Ralph Waldo Emerson, that you lived life successfully indeed:
"Those are a success who have lived well, laughed often, and loved much; who have gained the respect of intelligent people and the love of children, who have filled their niche and accomplished their task, who leave the world better than they found it, whether by a perfect poem or a rescued soul; who never lacked appreciation of the earth's beauty or failed to express it; who looked for the best in others and gave the best they had."
If Congress were my dear departed Mom, and I were the Department of Homeland Security (DHS), there would be purgatory to pay if I brought home a report card like DHS produced in 2007. To put it another way, If the President were Sister Donavita, my eighth grade parochial-school nun, and she issued me the 2007 DHS report card, I would have been (metaphorically) bloodied and bowed before I left her class, and my Mom would still provide (not quite so metaphorical) wooden-spoon discipline when I got home.
Regrettably, however, disciplinary standards of the past do not persist in the present. DHS Employee Morale a grade of "F,"Port Security a "C-/D+," Management & Organization, and Critical Infrastructure, both "Incompletes," and Chief Privacy Officer, an overly generous "B-," despite revolving-door leadership and an average three-year ranking of last place among all federal entities in "privacy trust" score, according to the Ponemon Institute's report (2007 Privacy Trust Study of the United States Government).
Why do we tolerate this abysmal lack of protection?
Sometimes, for no apparent reason, a word or phrase bubbles up from deep within the realm of memory. As I studied the excellent 2008 USCIS Ombudsman's Report to Congress, out from my cerebral hard drive popped "Hello Out There!" -- the title and opening and ending lines of William Saroyan's outstanding 1942 one-act play. The play is about angst, the existential cry of the human spirit beset by a world of injustice, but also about hopeful beginnings. (In high school I played the smallest of bit parts -- the jailer -- a ten-second walk-on with no lines.)
As I wondered why this phrase suddenly popped in my mind, into my consciousness came another meaning of "hello," pronounced with an adolescent sing-song intonation that stresses the last two syllables, as in "HellOOo." This slang meaning of "hello," as confirmed in www.SlangSite.com, expresses astonished incredulity at another person's naivete.
Pondering the two meanings of this common salutation, I at last made the connection to the Ombudsman's report. On one hand, his report is a deep-throated "Hello Out There!" -- an earnest clarion call alerting us in detail to the many problems and dysfunctions of USCIS, and a hopeful urging to our nation's leaders for resolute action. On the other, the report may well evoke a skeptical and smarmy reaction from members of the public and the immigration cognoscenti whose hopes have been dashed repeatedly by countless broken promises and initiatives that failed.
I take the quixotic view of the Ombudsman's report. If he can help in achieving even a glass half-full of his many worthy recommendations, and earlier unanswered suggestions to his predecessor, our country will be well served.
On July 9, Alma and Jose Bustamante forced open the door of consular absolutism just an inch or so, but this wasn't enough room for the couple to go through that unjust portal. Consular absolutism (also known as consular nonreviewability) is the longstanding judicial doctrince that the courts will not consider visa refusals based on a factual decision of an American consular officer.
The Ninth Circuit Court of Appeals in Bustamante v. Mukasey determined that "when a citizen’s constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, we undertake a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason." The Ninth Circuit rested this slim right of review on the citizen's liberty interest in marriage:
[We hold that] a U.S citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision. As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. . . . Here, [the American citizen spouse] asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband’s visa application. The Supreme Court has deemed “straightforward” the notion that “[t]he Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures.” Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause. See Cleveland Bd of Educ. v. LaFleur, 414 632, 639-640 (1974).
The Bustamantes lost because the ground of visa ineligibility involved a very low threshold. All that was necessary was for the consular officer to have a "reason to believe" that Jose was a drug trafficker.
In many other situations, however, the "reason to believe" standard does not apply. In other grounds of inadmissibility under INA Sec. 212(a), there must be real facts on which to base a visa refusal. Although the crack in the door of consular absolutism is narrow, passionate immigration lawyers should bring cases where a federal district court might well find that the consular official acted on a facially illegitimate basis or in bad faith. I suspect that some cases of this type are out there. Build the argument and the clients will come.
Congratulations to the Bustamantes' lawyers, Mark Van Der Hout and Beth Feinberg, for opening the door.
Angelo Paparelli is the Managing Partner of Paparelli & Partners LLP (www.entertheusa.com) in NY, NY and Irvine, CA. He serves as President of the Alliance of Business Immigration Lawyers (www.abil.com), a global network of 26 immigration law firms vetted for practice excellence and client service. Named the world’s leading corporate immigration lawyer (2005 & 2006, International Who’s Who of Business Lawyers) and a first-tier business immigration lawyer (2008, Chambers USA). Paparelli co-authors the New York Law Journal’s “Immigration” column, writes a blog (www.nationofimmigrators.com) and serves asan expert witness/consultant on immigration to law firms and businesses.