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.
- 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.")
- 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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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