There's little wonder why confidence in government is at a low point. In a recent AAO decision, USCIS went out of its way to say that the public and the immigration bar should not be lulled into deceiving themselves that the agency will stand behind its public pronouncements:
[T]he legacy INS comments in the supplemental information to the . . . regulation are not legally binding on USCIS. . . .
[E]ven where an agency memorandum or General Counsel opinion is publicized and discussed in a widely circulated immigration periodical, the document will not be considered as a rulemaking that a petitioner may rely on.
So the lesson here is that every time a lawyer or a stakeholder is tempted to rely on a USCIS web posting, press release, memo, press conference, answer in a liaison meeting or other utterance (except for published final rules and decisions designated as precedent), we should remember that the USCIS's word is not its bond. Don't risk your law license or your client's immigration case on the undeserved expectation that the government will keep its word.
There oughta be a law that administrative agencies are bound by an individual's reasonable reliance on a clearly worded statement issued by that agency, even if some bureaucrats might later find it convenient to repudiate its original pronouncement.
The last few days I've been gnawed upon by the feeling that my recent postings on the unreliable words of USCIS and DOL left something important unsaid. The recanting of DOL and reneging of USCIS keep reminding me of my law school days as my classmates and I watched the daily unfolding of the Wategate scandal on TV in the student lounge.
When DOL issued its "restatement" of the role of attorneys in PERM recruitment and the AAO said, in effect, that USCIS is not bound by anything it says unless contained in a regulation or precedent decision, the words of Nixon's then Press Secretary, the late Ron Ziegler, came to mind. He famously repudiated all of his previous factual statements about the Nixon Administration's asserted non-involvement in the Watergate break-in and cover-up by saying that his prior statements were "inoperative."
Our immigration bureaucrats seem to have forgotten this lesson of history. Facts are never inoperative. Statements, once made and relied upon, can never be imagined away with the turn of an administrator's phrase, as if they never happened.
An important reliance interest is damaged when the public cannot trust government to stand by its word. Stakeholder expectations, and business and personal plans, are dashed against the rock of administrative duplicity if not mendacity when governmental announcements of policy are issued with implicit mental reservations that these utterances are ephemeral and can be revoked at will. Words are not vapors that dissipate with the wind of bureaucratic expediency.
Pope John Paul II had it right when he said:
Trust is essential for our social wellbeing. Without trusting the good will of others we retreat into bureaucracy, rules and demands for more law and order. Trust is based on positive experiences with other people and it grows with use. We need to trust that others are going to be basically reasonable beings.
Owen D. Young, a lawyer and former chairman of GE, was also correct in observing:
We may accept the expanding power of bureaucrats so long as we bask in their friendly smile. But it is a dangerous temptation. Today politics may be our friend and tomorrow we may be its victims.
Why do we lawyers busy ourselves with the reading of immigration policy memoes that cannot be believed? Why do we fly or drive to attend liaison meetings with government agencies for front row seats at word-fests of deception? What good are we to clients if we cannot offer assured statements about what the "law" is?
Or to put it more tangibly, suppose undocumented immigrants disbelieved the following DHS announcement communicated through its Assistant Press Secretary, Michael Keegan, in a September 11 email to AILA:
In the event of an emergency - such as a hurricane - and the need for an officially ordered evacuation, our highest priorities are the safe evacuation of people who are leaving the danger zone, engagement in life-saving and life-sustaining activities, maintenance of public order, prevention of the loss of property to the extent possible, and assistance with the speedy recovery of the region. There will be no DHS immigration enforcement operations associated with evacuations and sheltering. The department's law enforcement components will be at the ready to help anyone in need of assistance. Obviously, the laws will not be suspended, but in the event of an evacuation, we want to make sure that we can help local authorities move traffic out of the danger zone quickly, safely, and efficiently. (Italics added.)
What if the undocumented in the path of Hurricanes Ike or Gustav decided not to board buses to escape the hurricanes because they suspected that the announcement was in truth a sting operation? What if they instead stayed put and drowned? Would those deaths be inoperative?
Harry Shearer, the actor and radio host, has a regular feature on LeShow, his weekly radio program. With deadpan voice, and music and lyrics in the background ("I'm sorry; so sorry"), Shearer reads a slew of recent public apologies from the famous and infamous, including a number of government officials. I doubt that the Labor Department's Sept. 17 announcement qualifies as a legitimate apology. Here it is:
The Department has been presented with evidence indicating that prior to its recent audits, many immigration attorneys believed that the Department’s rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking the labor certification, but also the alien for whom the certification was being sought. That interpretation is incorrect, as the Department’s recently issued PERM program clarifying guidance makes clear. Nevertheless, the Department will apply the requirements of the consideration rule as interpreted by its recent guidance only to labor certification applications the recruitment for which was begun after August 29, 2008, the date on which the Department’s final guidance was issued. All pending audits triggered exclusively by consideration rule concerns are therefore being released and will be processed in accordance with their original filing date.
So the DOL -- in a spirit of surprised discovery and more surprising leniency -- has just learned, apparently before August 29, 2008 when it issued its Restatement, that many immigration lawyers were fundamentally misinterpreting its PERM regulation. These lawyers "incorrect[ly]" believed that the attorney for the employer was exempt from the agency's PERM labor certification rule prohibiting consideration of the qualifications of U.S. worker applicants for the advertised job. As a result, the DOL has ceased the all-client audit of the Fragomen firm announced on June 2 to preserve "program integrity." The DOL's announcement does not disclose the newly discovered "evidence" to support its conclusion about mistaken lawyering. Perhaps some of that evidence came from AILA or maybe it came from Covington & Burling's brief outlining the relevant case law (at page 16 et seq.) filed in the Fragomen lawsuit against DOL.
None of this evidence, however, is all that recent. I can only speculate, but maybe the immigration attorneys to whom the agency refers are the lawyers in the Department of Justice's Office of Immigration Litigation (OIL) representing DOL. Perhaps the OIL lawyers informed DOL that the agency's surreptitious insertion of a few words imposing a new prohibition on the employer's attorney into the "consideration" rule of the final PERM regulation might well be a violation of the notice and comment requirements of the Administrative Procedures Act. Maybe the OIL lawyers suggested that the federal district judge in the Fragomen litigation might take umbrage over this bureaucratic sleight-of-hand.
In any event, given that the DOL says we immigration lawyers were all wrong in misreading the consideration rule, I -- on behalf of myself and any other immigration lawyers who share my sentiment -- hereby apologize:
* I'm sorry for failing to notice the text of the final rule and discovering the DOL's insertion of a few words to effect an unannounced change to the consideration provision.
* I regret that I trusted the DOL to alert the public in the supplemental statement accompanying the final PERM rule that the text of the section on consideration had changed.
* I was wrong to believe the DOL was serious in its June 2 press release, its later FAQ and its "Clarification" bulletin, in proscribing certain types of attorney behavior during the PERM recruitment process, only to see these pronouncements superseded and Dissuasion's Disappearance in the August 29 Restatement.
* I was naive and gullible to suppose that DOL viewed immigration lawyers as good-faith collaborators in a legal process where rules of fair play are honored.
So Mr. Shearer, I hope you consider my apology for LeShow. I doubt you'll be hearing one from DOL.
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.