IMMIGRATION: "THE MACHINE STOPS" OR, DEALING WITH AN IMMIGRATION SYSTEM "DISMANTLED IN ITS ENTIRETY" PART 1

Book Cover Courtesy: brooklinebooksmoth

Reference to the famous 1909 short story by E.M. Forster is a good way to start this post.  The story describes a world in which humanity lives underground serviced by a single, all-knowing machine that limits human contact to Zoom-like screens, and takes care of all other human needs in its own way – that is until "the machine stops."  

You will recall in my introductory post that I referred to statements by the incoming Department of Homeland Security, (DHS) Alejandro Mayorka, that: 

To put it succinctly, the prior administration dismantled our nation’s immigration system in its entirety.

For someone who has dealt professionally with the immigration system since 2002, I thought this statement was rhetorical to some degree, bitter as I was about Trump and the illegally appointed apparatchiks he put in place to sabotage the system.  I refer, among others, to Ken (the Cooch) Cucinelli, the former "Acting Director" of USCIS

and the even more odious Stephen Miller, who held no formal bureaucratic position, other than Senior Adviser for Policy and Speechwriter for Trump.  (His dead eyes say more than words what he was capable of, i.e. "kids in cages.") 

But I digress.  Things were terrible under Trump, but a "complete dismantling" of the system?  Really?

I say "yes" based on my experiences in the Trump Era with two of the primary immigration bureaucracies. The first is the "benefits bureau" of DHS, United States Citizenship and Immigration Services (USCIS).  The second is the immigration court system, which is part of the Department of Justice, and is known by the acronym EOIR for "Executive Office for Immigration Review." In the interests of brevity, I will discuss this subject in two posts, of which this is:

PART 1: USCIS

If I had my way, I would say that USCIS should be pronounced "USELESS." The sheer amount of dysfunction and the resultant harm to people with actual legal status here is breathtaking.  Sure, some of this is due to COVID, but not all.  Let's open the car hood and look inside, shall we?

I'll begin with something simple.  Renewal of a permanent resident's "green card" or I-551 as we call them.

They are typically issued for ten years and must be renewed by filing an I-90 application to continue having proof of one's legal status in the USA. Unhappily, it takes months for USCIS to generate a new card, and if the old card expires while the permanent resident (LPR) is waiting for a new one, the LPR is left without proof of his/her legal status in the United States.  Such proof is necessary for overseas travel, and such mundane matters as, for example, renewing a state driver's license.

This used not to be a problem. USCIS would promptly generate a receipt, followed by a biometrics appointment notice. (Biometrics means nothing more than the taking of digital fingerprints and a digital photo of the applicant at something called an Application Support Center or "ASC.") At the biometrics appointment, a transparent orange stripe would be added to the rear of the expired green card, which would state that the expired green card is temporarily extended for up to a year to provide proof of LPR status.

No more. It now takes USCIS months to generate the basic receipt, and more months to schedule the biometrics appointment.  Worse still, the ASC's were hard-hit by Covid-19 restrictions, and closed many many offices nationwide, causing an enormous backlog in appointments. Then USCIS adopted the tactic of saying that it already had the applicant's fingerprints on record, and therefore a biometrics appointment wasn't necessary. This also meant that the applicant was deprived of the possibility of obtaining interim proof of his/her LPR status.

In theory, one could solve this problem by scheduling an "InfoPass" appointment at the local USCIS district office to get an "ADIT stamp" in his/her passport that would provide interim proof of LPR status for an additional year.

But, to think that this would work is to underestimate the Kafkaesque re-design of the system under the Trump Administration, which actively worked to make the scheduling of an InfoPass appointment all but impossible.  Consider this private, online resource dated 07/19/2019, which accurately states the situation this way:

In the Ombudsman Report of 2019, we discover that the USCIS has quietly killed the InfoPass process for getting an in-person meeting with a USCIS agent to get an update about a dragged-out or stalled case. ....

In the past, the process was to set up an online appointment at your local field office.

The new process has the following steps:

Call USCIS at 1-800-375-5283

1. Get through their automated system to talk to a tier 1 agent
2. Demand a tier 2 agent and convince them to schedule an appointment
3. An agent will call you back within a 48 hour window to schedule an appointment. They will only make 2 attempts to reach you. If you don’t answer, you go back to step 1.

This is likely another measure designed to make the immigration [process] difficult and less streamlined by the Trump Administration. They claim that it’s to avoid frivolous InfoPass appointments, but it makes it very difficult for those who have a legitimate reason to schedule one.

As complaints mounted, and a genuine crisis developed for LPRs (again, lawful permanent residents) to renew drivers licenses or travel overseas, the Trump Administration introduced a band-aide solution on January 12, 2021:

USCIS to Replace Sticker That Extends Validity of Green Cards

Starting in January, we will replace the sticker that is currently issued to lawful permanent residents (LPRs) to extend the validity of their Form I-551, Permanent Resident Card (PRC or “Green Card”), with a revised Form I-797, Notice of Action. LPRs file Form I-90, Application to Replace Permanent Resident Card, when their Green Cards expire or are about to expire. The revised Form I-797 notice will serve as a receipt notice for the Form I-90.

When presented together with the Green Card, the revised Form I-797 notice will extend the Green Card’s validity for 12 months from the date on the front of the Green Card and will serve as temporary proof of the LPR’s status. This change ensures that LPRs with a recently expired Green Card will have documentation of identity, employment authorization, and authorization to return to the United States following temporary foreign travel.

In fact, the new system does not "[ensure] that LPRs with a recently expired Green Card will have documentation . . . ."  All this change actually did was eliminate the second, agonizing wait for a biometrics appointment (which might not even be scheduled) to get the orange strip on their expired cards.  It still takes months to get the initial, new form I-90 receipts with proof of status.

A similar problem exists in the case of marriage-based green cards in the United States where the foreign citizen marries a US citizen and obtains a so-called "conditional" green card because at the time LPR status is granted the couple has been married less than two years.  To prevent "marriage fraud," the foreign spouse is required to file a "Petition to Remove Conditions on Residence" on Form I-751 and submit voluminous documentary proofs, social and financial, which essentially show that (to use my words), "See, the marriage was good from the start because all these documents show that it's still good."

As with the renewal of a regular ten-year I-551 green card, the foreign citizen is again dependent upon USCIS to issue a receipt for the I-751 filing that temporarily extends permanent residence status.  It used to be that the I-751 receipt would extend the card's validity for 12 months, but USCIS adjudication of I-751s became so desultory and subject to interminable delays that the period of extended validity was increased to 18 months.

Once again, the real problem with these filings is the outrageous delay USCIS has created in the issuance of the all-important receipts for filing that provide temporary proof of LPR status.  I have had cases where the conditional LPR waited months for the receipt, for no apparent reason.  I am convinced that the delays in the issuance of these receipts were intentional because within days of filing these same clients would receive "no biometrics needed" notices stating that USCIS could use their fingerprints already in the system, while at the same time the Agency delayed issuing the receipts showing that they were here legally.  

I've also had situations where the 18-month extension of conditional LPR status was nearing expiration with no decision on the I-751, requiring the applicant to endure the process of getting an InfoPass appointment to get an "ADIT stamp" in his or her passport.  Again, I must emphasize that the system was intentionally designed to make the actual scheduling of an InfoPass appointment as difficult as possible, for no other reason than the illegitimate and illegal one of anti-immigrant hostility.

So, what's an immigration lawyer to do?  There are two informal avenues of communication I can use, both of which tap into my credibility as a private practitioner trying to make the system work.  

The first is to email the local USCIS Section Chief for "Customer Services" in Newark to request his assistance in scheduling an InfoPass appointment.  The intentionally hobbled appointment system will not allow him to schedule an InfoPass appointment in his own office, but he does have a better chance than I would of getting through to the "Tier 2" Officer on the 1-800 "customer service" line and having that individual schedule the appointment.  But unhappily, sometimes even he cannot get the appointment, and the sheer number of lawyers like me contacting him for help means that he is overwhelmed and a genuinely finite resource.

The second conduit is for me to email local USCIS counsel, whom I have known for many years, and put her on notice of the facts and advise that if the situation is not remedied promptly, I will file a lawsuit in federal district court to compel USCIS to perform this ministerial function "within a reasonable time," as required under the federal "Administrative Procedures Act," or "APA."  I typically threaten an additional claim under the federal "Equal Access to Justice Act," or "EAJA," which on a proper showing will award the Plaintiff counsel fees for meritless Agency inaction.  The threat of legal action allows the USCIS lawyer to get involved in what is essentially an administrative problem, but again, this is a finite resource that expends personal capital.  Cf. The boy who cried wolf.

Francis Barlow's illustration of the fable, 1687

In closing, let's consider the levels of harm created by the Trump Administration's sabotage of customer service at USCIS.  First, permanent residents who have the right to live and work in the U.S. and to travel overseas are deprived of those rights out of sheer maliciousness on the part of creatures like Cucinelli and Miller.  Second, even conscientious USCIS personnel who want to provide service are structurally prevented from doing so in many cases, and waste agency time and resources seeking workarounds to an intentionally broken system.  Third, my ability to help my clients is also limited by the volume of such requests I receive and my own finite resources.

In the past couple of weeks, I've begun to see some positive changes, on a case by case basis in matters where I've gotten involved, but fixing the system increasingly looks like a recent maritime problem in the Suez Canal.

https://goodwordnews.com/ship-stuck-in-the-suez-canal-live-updates/

 To be sure, it is a scandal.