Diaphanous Immigration Practices At USCIS
Transparency in government is the new mantra. The President
commands it. The Attorney General (AG) implements it, through a new policy requiring government agencies to
provide easy access to information and documents under the Freedom
of Information Act (FOIA). At U.S. Citizenship and Immigration
Services (USCIS), however, the practice is more diaphanous than
transparent. Diaphanous is one of those tricky words known as
contranyms, whose meanings are opposites of themselves. On one
hand, diaphanous means transparent, i.e.,
"characterized by such fineness of texture as to permit seeing
through." An opposite meaning of diaphanous, however, is vague
or obscure.
As shown in the published Q & A of a March 19, 2009 meeting with the
American Immigration Lawyers Association (AILA), the transparency
policy of USCIS, in Kafkaeque style, adopts the latter meaning of
diaphanous. Deflecting multiple requests for important immigration
documents by insisting on the submission of FOIA requests, USCIS
stonewalls the public. If it had truly wanted to comply with the
spirit of the AG's transparency order, USCIS would have treated
AILA's requests as FOIA requests (since the FOIA requires no
special form to make a request for documents or information).
Another important measure of transparency that USCIS could
embrace would be timely rulemaking under the Administrative
Procedures Act (APA). APA rulemaking is the antithesis of the
agency's extralegal practice of rulemaking by press release,
web posting or disclosed and undisclosed policy interpretations.
The purpose of APA rulemaking is to give the public a chance to
comment and present new or different ideas concerning anticipated
agency action before final rules take effect. Another purpose is to
test whether the agency's interpretation of a new statute
conflicts with legislative history. None of this happens, however,
when agency rules are adopted in stealth, with no input from the
public, and drip-by-drip disclosure of the new rules is the
standard mode of...
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