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Bloggings on Dysfunctional Government

by Angelo A. Paparelli

Editor's note: Here are the latest entries from Angelo Paparelli's blog.

July 17, 2009

Another Trash-Talking Inspector-General Report on Immigration

Federal Inspectors General (IGs) are critically-important public servants -- except when they are entranced by the siren song of individual Members of Congress who commission reports that lead to phony, pre-ordained and self-serving outcomes. When performing their responsibilities as Congress intended, the IGs work like truffle-sniffing canines, faithfully rooting out crimes, waste, fraud and abuse. They are also tasked with the duty "to provide leadership and coordination and recommend policies for activities designed . . . to promote economy, efficiency, and effectiveness in the administration of federal programs . . . and provide a means for keeping the head of the establishment and the Congress fully and currently informed about [bureaucratic] problems and deficiencies."

We've seen the regrettable pattern before, with Sen. Chuck Grassley's repeated insistence that USCIS find the widespread fraud in the H-1B visa program that he is certain exists. The result: USCIS conducted a poorly designed, internally referential (er, reverential) report that -- when results are extrapolated -- claim fraud and technical abuses are rampant. My point is not to suggest that fraud is as rare as a five-legged puppy. Rather it is that we must adopt the strategy that Ronald Reagan employed with the Soviets ("trust, but verify").

We now have another example of an IG hypnotized by the chatter of immigration-agency insiders with skewed views, a report issued back in March 2005 by the State Department's IG (but released just this week) entitled "Nonimmigrant Visa Adjudication: Standards for Refusing Applicants." State's 2005 IG report was commissioned by James Sensenbrenner, Jr., then-Chairman of the House Judiciary Committee, and Sen. Jon Kyl, Senate Judiciary Committee member, who asked the IG "to review the process by which adjudications are made and reviewed under section 214(b) of the [Immigration and Nationality Act (INA)]." They also requested that OIG review the merits of several proposals that might strengthen the Department of State's . . . ability to combat mala fide applicants, particularly those intending to do harm while in the United States."

INA § 214(b) is a nunchuk provision of law, which when coupled with § 291, gives U.S. consular officers unfettered power to knock out virtually any nonimmigrant visa applicant. Section 214(b) requires the applicant to prove that s/he (a) qualifies for the particular nonimmigrant visa sought, and (b) for most visa categories, has an unabandoned permanent residence in a particular home country to which the individual will return after achieving the purpose of entering the United States. Section 291 puts the burden on the applicant to prove to the consular officer's "satisfaction" that the requirements of INA § 214(b) have been established. (For a previous blog post and podcast on the subject, click here and there.)

The 2005 State IG report found, not surprisingly, that consular officers love § 214(b), but that it does not go far enough. Asking consular officers about 214(b) is like asking Warren Jeffs if he favors polygamy and child brides. The IG and the Conoffs want 214(b) carve-outs (introduced in the Immigration Act of 1990) removed for H-1B (specialty occupation workers), L-1 (intracompany transferees) and O-1(extraordinary ability aliens). One thing they don't want is to incorporate internal agency adjudication standards on 214(b)'s "intent-to-return-home" requirement into State Department regulations because that would reduce the officer's much-coveted "flexibility." That would also risk opening the subject to public comment under the Administrative Procedures Act and to the many nonpartisan reports criticizing 214(b) as in need of scale-back or elimination, such as the well-reasoned analysis issued by the University of California at Irvine and the Merage Foundations.

The problem with the recent spate of IG immigration reports is that they ask their questions in hermetically-sealed and cloistered environments. Open the doors and windows, much like the USCIS Ombudsman, and ask affected stakeholders, knowledgeable experts and (heaven forfend) immigration lawyers what's wrong and the IGs will get a very different earful of conclusions.

If the IGs -- when studying immigration -- are to fulfill their statutory mission of achieving "economy, efficiency, and effectiveness" and keeping Department Secretaries and Congress "fully and currently informed about [bureaucratic] problems and deficiencies," they would be better advised to study two other recent reports that reach conclusions diametrically opposed to the Conoffs' short-sighted grumblings. One report would be an enlightening study published under the auspices of the Small Business Administration ("High-tech Immigrant Entrepreneurship in the United States") and another is the recent bipartisan report of the Council on Foreign Relations (Independent Task Report No. 63 "U.S. Immigration Policy") that exhaustively and dispassionately covers the immigration debate.

Failing that, the IGs mis-reporting on immigration should take to some leisurely summer reading. As an essay last Sunday in the New York Times Book Review ("Still 'Ugly' after All These Years") reminded us, in speaking of a 1958 classic novel: "[I]t’s worth recalling that the impolitic travelers in 'The Ugly American' aren’t drunken backpackers or seniors sporting black socks, but the so-called educated elite of the diplomatic corps."