DHS Inspector-General Writes a Stunning Report on USCIS

By David North, January 11, 2012

In rare act of political courage, the Acting Inspector General of DHS – Charles K. Edwards – has filed a scathing report on the inner workings of U.S. Citizenship and Immigration Services (USCIS).

The report, released in full on Monday and previewed in a recent blog of mine, discusses how the new leadership of that agency has pressured staff decision-makers to say "yes" to various immigration petitions, sometimes of a questionable nature.

Edwards, a career civil servant, is holding the IG's job on an acting basis; the president selects the IG of DHS. Edwards has, in my eyes, put at risk any hopes he may have had of getting the job on a permanent basis by criticizing the actions of the president's appointees in USCIS. (BTW, I have not met him, never talked with him on the phone, and have no ties with him one way or another.)

In short, the IG's report is a gutsy document signed by a gutsy guy.

Further, it is quite unlike most of those bland reports that we see so often from the Government Accountability Office (GAO) or other Inspectors-General, which I have discussed in the past here and here.

Finally, as a piece of prose, it is better written and easier to understand than most works of this nature.

The report, however, bears one of those GAO-type titles: "The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers."

The report was set in motion by a request by Sen. Charles Grassley (R-IA) who, according to the document, "expressed several concerns about the immigration benefit adjudication system. He was uncertain about the effectiveness of USCIS efforts to protect national security and prevent fraud."

The general conclusion of the report is that too often those procedures and policies compromise fraud detection by line officers of the agency. Among the findings, in my words, are these:

  • The staff is pressed hard to produce decisions, preferably positive ones, rather than to weigh each decision carefully;
  • The decision-making officers (Immigration Service Officers or ISOs) have too few contacts with the fraud detectors (Immigration Officers or IOs);
  • There should be more ISOs and IOs, given the number of petitions;
  • The staff does not totally believe that their job evaluation reports no longer deal with the quantity of decisions they make, as they did in the past, nor that they are not in danger of a bad evaluation if they spend too much time on fraud.

There were two other interesting themes in the report:1) that outside lawyers have too much power in the actual decision-making process in cases where lawyers have been retained, and 2) that the whole concept of the burden of proof in immigration petitions should be changed in the direction of more integrity.

On the first point, the IG described numerous ways that private attorneys were able to enter the decision-making process on specific cases; much of this information came from a survey of USCIS staff members. Some of the specifics follow:

... A survey respondent wrote of a sense that private immigration attorneys "are running our offices" . . . We were informed that special treatment remains prevalent. An ISO said that the American Immigration Lawyers Association "owns" USCIS . . . These types of actions have the potential to create a two-tier immigration benefit system: Those with private attorneys or contacts at USCIS get special treatment, while others do not. Although we received evidence that the Director of USCIS does not support special treatment for complainants, more attention must be paid to this matter.

On the second point, there are three standards of proof used in legal matters, which are described in the report as follows:

. . . ISO managers view a preponderance of the evidence as greater than a 50% certainty that a fact is true. Clear and convincing evidence is seen as approximately 75% certainty. Proof beyond a reasonable doubt is 95% or more certainty . . . To satisfy the preponderance of evidence in immigration proceedings, applicants or petitioners must demonstrate only that the facts in their case are slightly more likely true than not true . . .

The IG report states that Congress may want to raise the standards of proof for "some or all USCIS benefit issuance decisions." That is not something that USCIS can do on its own, even if it wanted to do so.

As is always the case with reports like these, the agency involved gets to reply.

The USCIS response, signed by Director Alejandro N. Mayorkas, bristled: "First, there are many statements and assumptions throughout the report with which USCIS disagrees . . . these types of surveys [of USCIS staff] are referred to as 'self-selected opinion polls' that scholarly research concludes can produce flawed results."

Most of the agency response related to 11, generally very brief recommendations for action, rather than to the underlying reporting. For example, the first recommendation was non-controversial, and USCIS concurred with it: "promote better collaboration between ISOs and IOs in support of fraud detection efforts."

However, when the agency got to the IG's seventh recommendation, "Develop standards to permit more time for an ISO's review of case files," the agency replied: "USCIS non-concurs with this recommendation as it broadly identifies additional time as the solution to improving the analysis of a case for issues related to national security and fraud detection."

This observer, in turn, non-concurs with the USCIS position.

Normally, reports like this one secure little media attention; that was not the case in this instance, as will be discussed in a future blog.