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Grading The Various Governmental Bodies For Their Work On Immigration In 2008

by Alan Lee, Esq.

There was not a lot to cheer about in 2008 immigration-wise, and so we thought that we would recap some of the year's performances and hand out grades for the things we thought were good and not so good.

  1. For the Administration's allowing and encouraging the Department of Homeland Security to continue and even step up the pace and size of its raids which terrorized millions of undocumented immigrants leading to the Postville, Iowa, debacle in which people were herded like cattle and threatened with criminal charges, an "F" as this not only made America look like a third world country dictatorship, but ensured that the class of 11-12 million would no longer be interested in buying U.S. homes. Their continual buying of residences when the subprime mortgage problem was still in its infancy could have led to a softer landing for the nation's real-estate market. (To read more on this, see our article "Housing market fiasco and American retirements not helped by Republican administration's immigration raids terrorizing illegal immigrant potential homebuyers.")
  2. For the Administration's inclusion of seven countries in the visa waiver program - the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea, an incomplete. However, it boggles the imagination to believe that citizens of at least some of these countries once entering the United States will actually return home. Did these countries really have a nonimmigrant refusal rate of less than 3% for the previous year or an average of no more than 2% over the past two fiscal years with neither year going above 2.5%, one of the standards for visa waiver program participation? Will their citizens actually return home in the vast majority once they are here? Or were these designations mainly due to political considerations?
  3. For the Administration's extending a not ready for prime-time E-Verify program until March 2009 and making participation mandatory for contractors doing business with the federal government, a "D" as the error rate in the Social Security Administration database is still high and many new hires will receive tentative non-confirmations, an unsupportable proposition in this day of ever larger layoffs in which employers can easily pick others who have been confirmed by E-Verify.
  4. For Congress's failure to pass any type of meaningful immigration legislation to help any class of non-citizens, whether H-1's, other legal non-immigrants or illegals attempting to immigrate through the present quota system, or illegal schoolchildren or undocumented workers through immigration reform, an "F". Such stonewalling for which the Republicans were rightfully apportioned most of the blame led directly to their poor showing among Hispanics and other minority groups in the November elections.
  5. For U.S.I.C.E.'s pilot program, "Scheduled Departure", asking undocumented immigrants with final orders of exclusion, deportation, or removal to turn themselves in for deportation, a nice try humorous "C" as only a handful of people gave themselves up nationwide as there was no incentive to do so other than the agency's statements that doing so would minimize the impact on their families, place them in compliance with the law so that they could avoid sudden arrest and detention, and that they might be able to bring their families back with them.
  6. For the Department of Labor's attempting to justify continued use of its backlog reduction staff once it shut down the backlog reduction centers by taking microscopic looks at PERM labor certification applications, raising the number of audited cases to over 40% at times during the year, and more than doubling the period of time required to adjudicate clean labor certification applications, "C-". The major purpose in switching over to the PERM system was the elimination of backlogs, and DOL lost sight of this in extending its review of audited cases to 15 months and appeals/motions to almost two years.
  7. For the Executive Office for Immigration Review, a "B+" for its issuance of the Immigration Court Practice Manual, which has made it much easier for lawyers to practice not only before their own immigration courts, but those outside of their normal range of practice. The manual attempts to impose uniform rules of practice on all immigration courts. Although there are still many bumps in its implementation, practitioners should no longer have to worry about the peccadilloes of each immigration judge in the future.
  8. For the Board of Immigration Appeals, part of the Executive Office for Immigration Review, a "C-" as we have not yet seen a marked improvement in its decision making process. Perhaps this is because we have only seen a small slice of the Board's work, but we have yet to see well reasoned decisions by a Board panel in an unpublished case. It has been said that the Board is moving away from single Board member affirmations without opinion (AWO's), and we hope to see that in more cases for 2009. Since the Board was slashed from 19 to 11 members in 2002-03, most of the decisions have been dispiriting in their brevity and lack of deep analysis. The First Circuit Court of Appeals heavily criticized it in a case noting that the Board member who had denied the administrative appeal was recorded as having decided over 50 cases on one day, a rate of one every 10 minutes over the course of a nine hour day. The court further noted that it had taken the court considerably longer than one day just to review the alien's case, and that the record of the hearing itself could not be reviewed in 10 minutes. The recent appointment of five new Board members raising the present total to 13 was criticized by the American Immigration Lawyers Association as including members who except for one solely had government experience, did not have experience in private immigration practice, and that most of them had only served on the prosecution's side during their time in government.
  9. And last but not least, a "B+" to U.S.C.I.S. as it continued shortening the processing periods on many applications between filing and interview, although its service centers were many times long on employment based cases, and the timeline for adjudication of appeals at its Administrative Appeals Office (AAO) became outrageously long for many classes of cases. The agency managed to keep naturalization application timelines respectable despite a heavy workload in that area, revised the background check process so that many applications could be adjudicated where FBI name checks were pending beyond 180 days, provided more time for H-1B applicants to submit their cases in April, ruled that non-picked H-1B applicants with majors in science, technology, engineering and math (STEM) programs could have additional periods of time to stay in the U.S., and continually updated its forms and instructions. Going forward into 2009, it must have a new director as Emilio Gonzales resigned in early 2008 and Jonathan Scharfen, his replacement, also recently left. The agency should continue bringing down processing times even further, especially with regard to petitions which are returned from the consulates for review/ possible revocation and appeals at the AAO, and finally pass regulations for the Child Status Protection Act (CSPA) which it has been promising to do for years.

There are undoubtedly myriad other subjects which could have been touched upon in this article, but we believe that it offers a cross-section of concerns and thoughts over the performances of the various bodies related to immigration during 2008.

About The Author

Alan Lee, Esq. the author is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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