Despite persistent immigration deadlock in a Congress whose job approval has plummeted to its nadir, fresh tendrils of hope are sprouting:
- We hear from reported remarks of Senator Richard Durbin that the Department of Homeland Security (DHS) will soon announce administrative action to give much-needed relief to individuals who would benefit from the DREAM Act, a bill still in its tenth year of infancy in the "world's greatest deliberative body."
- Other welcome news came this week from the White House and the DHS agency, U.S. Citizenship and Immigration Services (USCIS), announcingnew immigration avenues for foreign entrepreneurs and releasing a related FAQ.
- These moves arise on the heels of two prosecutorial discretion memos by John Morton, the head of Immigration and Customs Enforcement (ICE), that balance enforcement priorities with pragmatism by targeting dangerous immigration perps and showing compassion for low-level immigration violators (allowing them suspended animation and work permission, presumably until Congress gets its houses in order and enacts comprehensive reforms).
These actions are merely yards and yards of 2012 campaign bunting, however, unless the Executive Branch displays chain-of-command rigor in disciplining insubordination in the ranks of lower-level immigration agents. Lofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders.
I've blogged before about immigration indifference, describing it as the "Adjudicator's Curse." Time has shown, however, that the manifest problems of widespread flouting of orders stem from more than mere indifference. Three of my experienced immigration colleagues (each with 20+ years of experience with the agencies), offer painfully descriptive ventings of real-word, systemic immigration meltdowns and propose the theory that adjudicators' off-message behaviors are attributable to "sloth" (a MUST READ: Tyranny of Sloth #1, Tyranny of Sloth #2 andTyranny of Sloth #3).
The failure to follow Headquarters' immigration policies is caused by more than indifference and sloth.
- It could well be job-protection and fear of second-guessing if a bureaucrat makes a bad call in approving an immigration benefit that later explodes and causes an internal investigation or angry Congressional or media attention. (Recall that the posthumous grant of flight student visa status to Mohamed Atta and another 9/11 hijacker led to the elimination of the legacy agency, Immigration and Naturalization Service (INS).)
- It could be low hiring standards (one in-house counsel of a major American company once reported to this blogger that a senior USCIS official had tried to rationalize her agency's failures to comprehend the contents of documents submitted with his company's immigration petitions by saying, "You must understand, most of our adjudicators have learned English as a second language").
- It could be long institutional memories about a heads-will-roll "Zero Tolerance Policy," followed by the policy's revocation, then followed by a laudable effort to inventory and reconcile agency policies and survey the public.
- There is probably also a significant measure of union-management tension, reflected, for example, in the attack on the prosecutorial discretion memos and public vote of no-confidence in John Mortonby the ICE agents union and the formal opposition to discipline by the USCIS officers union, and
- Let's also not ignore the obvious -- entrenched opposition among career officers to this Administration's more welcoming immigration policies. We've seen this movie before ("The IRCA Legalization Program," produced by famed Hollywood actor and U.S. President, Ronald Reagan, and featuring a "cast of millions") and we know how it ends:
- Scene 1: Congress passes the Immigration Reform and Control Act of 1987 (IRCA) including a legalization provision requiring, among other elements, proof that a failure to maintain immigration status was "known to the government."
- Scene 2: INS issues a series of Legalization communiqués interpreting the "known to the government" requirement in niggardly and niggling fashion, thereby trying to shrink the pool of eligible legalization beneficiaries.
- Scene 3: Years of expensive federal litigation ensues before final relief to denied "known to the government" beneficiaries is granted in 2008!
Whatever the cause of bureaucratic intransigence, the President's laudable goal of creating jobs through more enlightened immigration policies and innumerable Conversations with the Director -- however commendable and well intentioned -- will not succeed unless "off-the-reservation" conduct by rogue underlings are sanctioned, not with ribbons and medals but with pink slips.
Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelli’s blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.