the semipermeable immigration bureaucracy

[Image: Wikipedia]

This address change issue is just one of a plethora of obstacles facing immigrants who attempt to interact with the often-impenetrable immigration bureaucracy in the U.S.  The rules always seem to be shifting and are not always written down.  Even wealthy or accomplished immigrants face long delays and inexplicable decisions.  One word comes up repeatedly in reference to this system: Kafkaesque.  

Once the lawyer thought he had humiliated K. sufficiently, he usually started something that would raise his spirits again. He had already, he would then say, won many such cases, partly or in whole, cases which may not really have been as difficult as this one but which, on the face of it, had even less hope of success. He had a list of these cases here in the drawer--here he would tap on one or other of the drawers in his desk --but could, unfortunately, not show them to K. as they dealt with official secrets. Nonetheless, the great experience he had acquired through all these cases would, of course, be of benefit to K. He had, of course, begun work straight away and was nearly ready to submit the first documents. They would be very important because the first impression made by the defence will often determine the whole course of the proceedings. Unfortunately, though, he would still have to make it clear to K. that the first documents submitted are sometimes not even read by the court. They simply put them with the other documents and point out that, for the time being, questioning and observing the accused are much more important than anything written. If the applicant becomes insistent, then they add that before they come to any decision, as soon as all the material has been brought together, with due regard, of course, to all the documents, then these first documents to have been submitted will also be checked over. But unfortunately, even this is not usually true, the first documents submitted are usually mislaid or lost completely, and even if they do keep them right to the end they are hardly read, although the lawyer only knew about this from rumour. This is all very regrettable, but not entirely without its justifications. But K. should not forget that the trial would not be public, if the court deems it necessary it can be made public but there is no law that says it has to be. As a result, the accused and his defence don't have access even to the court records, and especially not to the indictment, and that means we generally don't know - or at least not precisely--what the first documents need to be about, which means that if they do contain anything of relevance to the case it's only by a lucky coincidence. If anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it's possible to work out and submit documents that really direct the issue and present proof, but not before. Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it's only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that.

From The Trial by Franz Kafka

IOZ cited the excerpt above to illuminate the absurdities inherent in the government's defense against the N.S.A. spying lawsuit, but it is equally applicable to the arbitrary and opaque proceedings and procedures immigrants face in their efforts to remain within the narrowly circumscribed parameters of "legality."  With both issues, the government justifies lack of transparency or predictability on the grounds of national defense--standard legal safeguards of due process and other constitutional guarantees don't apply when the country is at risk of infiltration by the savage hordes with indiscernible motivations clamoring for entry.   

IOZ expounds in a separate post:  

Unlike 1984, which certainly covers similar territory, and which is an extraordinary book but not a great one, The Trial isn't only a tale about the depredations of tyranny and the excesses man is capable of in order to acquire and retain power. 1984 posits explicitly a tyranny that understands what it is doing. O'Brien, the Inner Party Member, explains this precisely to Winston Smith during his long torture and rehabilitation. Even though it ends hopelessly, Orwell's novel nevertheless locates the source of tyranny in human actors with wicked but understandable human intentions. They are men who want power, have acquired it, have determined to keep it, and have resolved to undertake any measure to do so. That's monstrous, but it's also almost comforting, for even as O'Brien claims that the Party has constructed an infallible mechanism for maintaining control, we know that so long as the Party is made up of and directed by men, no matter how resolved, then it is fallible and mortal.

The Trial has no party, no central committees, no intentions, no self-conscious authorities. It is a bottomless depth. Within every wheel is another wheel; every mirror faces another mirror. Its authority is concealed and concealing, obscured and obscuring, endless, personless, utterly implacable, and totally inhuman. It has no reason, no goals, no purpose, and no desire. Although it operates through human interlocutors, it is utterly and completely alien. Unlike Orwell's Party, it isn't malevolent, nor evil exactly. Kafka's authority is a vast, meteorological force of nature: a disaster, perhaps, but something totally impenetrable to moral or ethical speculation. It's more mysterious than God.

IOZ highlights the ways that the efforts of individual actors in the system can be ultimately irrelevant to outcomes.  The intentions of even well-meaning government employees are swallowed up in the system.  IOZ wouldn't limit the scope of these absurdities to the immigration bureaucracy, but he's more ambitious than I.  For now, I'm content to draw attention to the free hand we as citizens have thus far given the government in regulating its interactions with non-citizens for the purported reason that this is required in order for us to sleep safe at night.  But this is a distorted view--rule of law should apply to these processes as they do to others.  And there is the ever-nagging worry that most of the changes to the immigration system in the last 20 years have been driven by political machinations rather than legitimate security concerns.

Update 12/13/07 5:50 p.m.: A phone information system which acts as a selectively permeable membrane as I described above--encouraging people to call for information, then refusing to provide it--makes no sense at all.  However, it bears pointing out that a well-functioning immigration bureaucracy actually would act as a semipermeable membrane, screening out undesirables and making sure immigration benefits are properly awarded.  But that is not the system we have. 

First, the "undesirable" category at present is far too broad and sweeps up lots of people it shouldn't, like HIV-positive applicants, same-sex spouses, people who've been convicted of minor crimes like shoplifting, or even people from certain countries or of certain hues--the discretion inherent in the present system allows ample room for discrimination based on race or nationality.  "Undesirables" also include the great majority of low-income Mexicans and Central Americans coming to work in the U.S., for whom there are each year a vanishingly small number of green cards available (147 for all new unskilled workers worldwide, by one calculation).  

Second, the immigration system doesn't work well even according to its stated aims.  Applications are sometimes lost or misplaced for years, it's nearly impossible to get any useful information from the online or phone systems dedicated to providing information to applicants, the process is expensive and confusing to laypeople, and safeguards against error or abuse of power like appeals or requests for review are often so flawed as to be useless.  The 9/11 hijackers showed that members of a well-funded terrorist group that had the resources and knowledge to navigate the system could do so.  We know that the system was inefficient because six months after 9/11, two of the hijackers received their student visas. There have been some improvements in efficiency since then, but not nearly enough, mainly since the system is primarily funded not through tax dollars but through application fees.  Our principal response to 9/11 was to make it more difficult for everyone to get in, at great expense while incurring large opportunity costs, regardless of whether applicants presented a security threat or not.  The FBI name check process can take years for an applicant who is already here in the country, which makes no sense at all.  If the person really did have ties to some terrorist group, wouldn't this be good to know right away, rather than in two or three years' time?  So the "membrane" is not particularly selective--as it should be if security concerns were paramount--it just reduces the total number of people who can get in.