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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