USCIS in urgent need of reform – Sexual coercion charges brought against USCIS officer

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U.S. Citizenship and Immigration Services (USCIS), the principal immigration agency in the U.S. and successor to the INS, is in dire need of reform from top to bottom.

The agency has completely failed to keep up with the predictable (and predicted) surge in naturalization applications last year stemming from upcoming elections and a substantial fee increase for naturalization applications—from $400 to $675.  In addition, a new instance of bribery and malfeasance at USCIS in New York shines light on a system predicated on arbitrary decisionmaking and very little oversight, conditions that breed corruption and abuse. 

Preemptive Update: After writing most of this post, I saw that Nina Bernstein at the NY Times has blown the Baichu story wide open (I initially saw a shorter version reported in the NY Daily News).  I’ll definitely have more to say about this later.

First, some of the leaders of comprehensive immigration reform initiatives in recent years in the Senate—Kennedy, Leahy, and Schumer—have sent a letter to DHS Secretary Michael Chertoff.  They are upset that the promises USCIS made when it proposed the fee increase have been broken. (Via Greg Siskind

We are deeply troubled by the serious backlog of naturalization applications pending adjudication at the United States Citizenship and Immigration Services (USCIS).

Last year, USCIS announced it would increase the naturalization fee by 80% from $330 to $595 (if the biometrics fee increase is included, the total fee increase is from $400 to $675, or 69%). As a result, almost a million and a half immigrants applied for naturalization before the increase went into effect. The agency justified the unprecedented fee increase by arguing that it would solve many agency problems and pay for a 20% efficiency improvement in adjudicating naturalization applications. At the time, USCIS reported that the average processing time for naturalization was 5.57 months, just under its stated six-month goal.

However, the USCIS recently announced that it will take 14-16 months to process naturalization applications filed after June 2007. In other words, for naturalization applications filed after the fee increase, USCIS is now charging almost twice as much for a service that takes twice as long.

The agency has responded to previous Congressional inquiries on this issue by stating that it could not have foreseen this surge in applications. We do not find that argument persuasive. Every previous naturalization fee increase has had the same effect. Preceding each of the naturalization fee increases in 1998, 2002 and 2004, a large surge in applications took place. It should have come as no surprise that the agency received 1.4 million naturalization applications in FY 2007, nearly double the volume received in the previous fiscal year. Despite knowledge that the fee increase would bring a surge in applications, the agency apparently did nothing to prepare for it. Clearly, a work plan should have been put in place well before the fee increase was implemented.

This delay has important political implications, since new citizens are poised to make an unprecedented impact in this year’s elections.  They are highly motivated to get involved given the toxic atmosphere surrounding immigration, a toxicity purposefully injected by anti-immigrant groups like FAIR and CIS.  The double whammy of increasing fees to make it more difficult for low-income permanent residents to naturalize, then taking a year and a half to adjudicate those applications that do get filed, can’t help but raise questions as to the real reason for these delays.  USCIS has certainly not made timely adjudications of naturalization applications a priority thus far. 

Next, Nina Bernstein at the New York Times has broken a story of corruption and sexual assault by a green card adjudications officer at the Garden City, NY, USCIS office. 

No problems so far, the immigration agent told the American citizen and his 22-year-old Colombian wife at her green card interview in December. After he stapled one of their wedding photos to her application for legal permanent residency, he had just one more question: What was her cellphone number?

The calls from the agent started three days later. He hinted, she said, at his power to derail her life and deport her relatives, alluding to a brush she had with the law before her marriage. He summoned her to a private meeting. And at noon on Dec. 21, in a parked car on Queens Boulevard, he named his price — not realizing that she was recording everything on the cellphone in her purse.

“I want sex,” he said on the recording. “One or two times. That’s all. You get your green card. You won’t have to see me anymore.”

She reluctantly agreed to a future meeting. But when she tried to leave his car, he demanded oral sex “now,” to “know that you’re serious.” And despite her protests, she said, he got his way.

The 16-minute recording, which the woman first took to The New York Times and then to the Queens district attorney, suggests the vast power of low-level immigration law enforcers, and a growing desperation on the part of immigrants seeking legal status. The aftermath, which included the arrest of an immigration agent last week, underscores the difficulty and danger of making a complaint, even in the rare case when abuse of power may have been caught on tape.

No one knows how widespread sexual blackmail is, but the case echoes other instances of sexual coercion that have surfaced in recent years, including agents criminally charged in Atlanta, Miami and Santa Ana, Calif. And it raises broader questions about the system’s vulnerability to corruption at a time when millions of noncitizens live in a kind of legal no-man’s land, increasingly fearful of seeking the law’s protection.

The agent arrested last week, Isaac R. Baichu, 46, himself an immigrant from Guyana, handled some 8,000 green card applications during his three years as an adjudicator in the Garden City, N.Y., office of United States Citizenship and Immigration Services, part of the federal Department of Homeland Security.  

. . .

Money, not sex, is the more common currency of corruption in immigration, but according to Congressional testimony in 2006 by Michael Maxwell, former director of the agency’s internal investigations, more than 3,000 backlogged complaints of employee misconduct had gone uninvestigated for lack of staff, including 528 involving criminal allegations.

The agency says it has tripled its investigative staff since then, and counts only 165 serious complaints pending. But it stopped posting an e-mail address and phone number for such complaints last year, said Jan Lane, chief of security and integrity, because it lacks the staff to cull the thousands of mostly irrelevant messages that resulted. Immigrants, she advised, should report wrongdoing to any law enforcement agency they trust.

The young woman in Queens, whose name is being withheld because the authorities consider her the victim of a sex crime, did not even tell her husband what had happened. Two weeks after the meeting in the car, finding no way to make a confidential complaint to the immigration agency and afraid to go to the police, she and two older female relatives took the recording to The Times.

Let me put this gruesome incident in a little bit of context.  These instances of abuse and corruption at USCIS are so common because of the atmosphere of impunity officers work in and because out-of-status applicants have so few rights under the law. 

I must first recognize that many USCIS adjudicators are dedicated public servants working under quite difficult conditions.  They are undercompensated and from what I’ve seen have very high caseloads.  But the way the process works right now essentially puts applicants at the mercy of a single adjudicator, especially in spousal green card adjustment of status cases.  If that adjudicator doesn’t approve the case at the initial 15 minute interview, the case is tainted from then on, potentially irreparably.  This is what gave Baichu so much power over this young woman, and she knew it.   

In its defense, USCIS may point out the established procedures for appealing unfavorable administrative decisions.  In a spousal green card adjustment of status application, for instance, if the initial decision is unfavorable, the applicant and spouse will be referred to a secondary interview, commonly known (in NY, at least) as a “Stokes” interview.  If the Stokes interview leads to denial of the application, the applicant can appeal the decision to the Board of Immigration Appeals.  And there’s nothing to stop the couple from applying again. 

This all sounds reasonable enough, but let me explain why it’s not. 

First, the Stokes interview is a hellish procedure more akin to the Spanish Inquisition than to any formalized adjudication process.  You can really see why due process guarantees matter after witnessing firsthand the myriad ways USCIS officers get it wrong when they act as the sole prosecutor, judge, and jury and proceed under the presumption that the person in front of them is lying. 

Applicants and their spouses are separated and asked identical questions from a list.  They are each grilled for 45 minutes to an hour and their answers are then compared for discrepancies.  They are expected to answer questions like:

  • What color is your spouse’s toothbrush?
  • How many minutes does your spouse have on his/her phone plan?
  • How many days did your last vacation together last?

Applicants are nervous because they know their future together depends on answering these questions accurately.  If one spouse answers that her toothbrush is red, while her husband answers that the toothbrush is red and white, they could reasonably be describing the same toothbrush, but a suspicious officer would likely view that as a discrepancy.  The couple can answer 80-90% of the questions correctly, but those few discrepancies that arise, even if they can be reasonably explained, may be enough to doom the application. 

Meanwhile, the Stokes officer (again, typically proceeding under a presumption of guilt rather than with an open mind) may threaten the petitioning spouse with legal action if he/she doesn’t withdraw the petition (generally a calculated bluff), may berate and belittle the applicant or petitioning spouse, may ask quite personal questions about intimacy and sex life, and may on occasion do any or all of these things off the record, knowing that this will limit the applicant’s chances of preserving an accurate record for appeal. 

And did I mention, if the applicant or spouse is black, expect to be hassled even more than usual.  That's the unfortunate reality in a system that vests so much discretion in a single individual. 

An appeal to the BIA of an unfavorable Stokes ruling will usually be unsuccessful and may take a year and a half or more.  Applicants can file again but will face tough questioning as to why the previous application failed, and will therefore be operating at a disadvantage from the start.  If the applicant is put into removal proceedings, he/she can’t even utilize the additional procedural benefits of the court setting (though even those benefits are limited, since these are administrative judges, not Article III judges) on the issue of the validity of the marriage, since USCIS, not the judge, must adjudicate the I-130 petition.  This means a necessary return to the flawed Stokes procedure. 

The strain this whole process causes to marriages that are already inherently uncertain until approved by the government can be intense.  I would not be surprised if some marriages did not survive the process--and in fact, the victim of the corrupt USCIS officer may now be in this position:

The young woman’s ordeal is not over. Her husband overheard her speaking about it to a cousin about a month ago, and she had to tell him the whole story, she said.

“He was so mad at me, he left my house,” she said, near tears. “I don’t know if he’s going to come back.”

The green card has not come through. “I’m still hoping,” she said.

The government views a failed marriage as validation that its anti-fraud procedures have succeeded.  So much for family-friendly policies.  The woman in the story above may be eligible for other forms of relief now such as a U Visa (although USCIS would have an inherent conflict of interest in adjudicating a U Visa petition where the perpetrator was a USCIS employee), but as far as the government is concerned, the spousal green card case is probably a dead letter since the husband no longer seems to be in the picture.  This only occurred because of actions USCIS itself took, but good luck trying to use concepts like "logic" or "reason" when trying to convince USCIS of the initial bona fides of a now-troubled marriage. 

I understand that the government has a legitimate interest in combating marriage fraud.  But I would hope that the procedures they would implement for detecting fraud would be effective, efficient, and fair.  They are anything but.  At the end of the day, a married couple’s chances of succeeding in a green card application have more to do with race, nationality, and socioeconomic status than they do with the underlying merits of the case. 

Apparently the sexual proclivities of the adjudicating officer are also an important factor in some cases.   

USCIS needs to overhaul the standards it sets for its employees and the policies and procedures it implements under executive authority.  But more importantly, as we’ve seen time after time with the Bush executive branch, the situation calls for meaningful oversight and constraint by Congress.  And Congress should review and reform the immigration laws to make them more effective and less unjust.  Abuses like those in the Baichu case are bound to occur with such a vulnerable population--a vulnerability that has been consciously created and legislated by anti-immigrant groups in the stated attempt to make life so miserable for them here that they leave of their own accord. 

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Karl said:

Hey you, “nation of laws” screamers, how are you doing?
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This page contains a single entry by David Bennion published on March 20, 2008 11:56 PM.

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