The Rest of the Story on Partial Federal Court Secrecy in Immigration Cases

By David North, January 15, 2013

Last month I reported on a case of puzzling, partial judicial secrecy about an immigration case in a blog entitled "It's a Sealed Court Document, But if You Cross My Palm with Silver ...".

It was a case in which an employer, wanting a green card for a worker, and having been denied it at the staff level, took USCIS into federal district court in Detroit. In this instance, all the court documents except the judge's orders were seemingly closed to the public, though generally federal court documents are open to all (for a dime a page) on the court's website PACER.

However, I discovered after poking around a bit that I could obtain a closed document of particular interest by sending a check (for $39.50 in this case) to the court clerk. On December 19 I sent off the check and on January 12 I received a copy of what I wanted, the complaint that set the case in motion. Before describing the case, let me make four points:

  1. Immigration benefits, like the green card in this case, are government-produced goods, just like a tax break or an agricultural subsidy, and when those subjects get into court the public has a right to know what is going on.

  2. If some courtroom data — the name of a 16-year-old rape victim, for instance — is to be kept secret it should stay completely secret and not to be available to those willing to spend, say, $39.50, but secret to everyone else.

  3. This rule is not a whim of the federal judges in Michigan, it is a nationwide court regulation and it is part of the Federal Rules of Civil Procedure, at 5.2 (c), as one of my readers (thank you Douglas Palmer) informed me. It relates to all immigration and Social Security cases.

  4. USCIS, in a way I will describe shortly, uses this rule to hide settlements from the public and judges let this happen. The settlements are, I suspect, nearly always migration-expanding ones.

The plaintiff, Strategic Staffing IT, Inc. (SSIT), appears to be a relatively small, relatively new staffing firm, one that brings H-1B workers to this country and then rents them out to software companies; it has a name that is similar to some other organizations presumably in the same business. SSIT is in Livonia, Mich., and has, according to one website, brought 29 H-1Bs to the country in 2011 and 2012 with average salaries of $57,000 - $60,000 a year.

SSIT's lawyer, Dehai Tao, runs a two-person law firm that concentrates on H-1B and green card applications.

SSIT, through Tao, filed an I-140 petition in order to secure a green card for what they claimed was an SSIT employee, Sheshagiri Hullur, presumably then an H-1B. USCIS reacted to the application by sending a Request for Evidence (RFE) asking for more information about the employer-employee relationship.

The employer replied, providing among other things copies of two monthly paychecks each for $8,400. After receiving the reply to the RFE the government concluded: "it does not appear that the petitioner is the actual employer of the beneficiary" and denied the petition. All of this is from the complaint that we at CIS purchased from the court.

USCIS was, in this instance, following a thread sometimes used in recent years in which it denies green cards for workers who are really working for someone other than the placement agency, a posture that has alarmed the so-called Indian bodyshops who are major players in the temporary high-tech worker business.

SSIT and Tao then skipped the normal process of appealing a negative staff decision to the Administrative Appeals Office of USCIS and went straight to the district court on the grounds of an "arbitrary decision" that they claimed was in violation of the Administrative Procedure Act.

The case was heading to a summary judgment argument on the law in the case, there being no obvious dispute about facts. Before that happened, however, the judge on November 6, 2012, issued an order saying: "[It] has come to the Court's attention that it may lack subject-matter jurisdiction. Accordingly, the Court has determined the briefing on that issue is required, and that the hearing on the summary judgment motions should be adjourned."

Orders are not suppressed, as are motions. (The document can be seen by PACER subscribers at 4:11-cv-15709-MAG-MJH no. 21.)

The order meant that a new issue had been raised, probably by the USCIS lawyer, that had to be resolved before the summary judgment matter could be addressed. (Perhaps that related to the non-exhaustion of administrative remedies that was caused by SSIT's non-appeal to the AAO; that's a guess on the part of this non-lawyer.)

The judge's concern on this issue was short-circuited by the fact, noted in another, subsequent order, that "USCIS, however, voluntarily approved the I-140 petition on October 22, 2012." (This order has the same basic ID number as the PACER one mentioned earlier, but it is document 24.)

The judge did the predictable thing and ordered the case closed as both sides had agreed to settle. He could have rejected the settlement, but judges rarely do that.

I looked through other PACER files in Michigan's federal courts and found at least a dozen other cases against USCIS that were kept secret (short of the $39.50 per document route); in every instance that agency did not take the case to trial, and in every instance it settled without disclosing the terms. (I assume that benefits were issued in every case, but do not know for sure.)

The SSIT case was, in short, a partially happy exception to the run-of-the-mill USCIS cases in these courts; yes, it was also settled without a fight, but at least in this instance the judge made it known that USCIS had caved on the basic issue, the granting of the green card.

USCIS, before it agreed to settle a case, could insist that the terms be made public, and the employer and the would-be green card would presumably accept such terms, but apparently USCIS does not require that. The agency apparently prefers silence on such matters.

At first I wondered if the SSIT case had been settled because the government's lawyers were too lazy to contest the matter, but the sequence of events just described indicated that USCIS had simply pulled the rug out from under its own attorneys, perhaps just before they were going to win on the question of "subject matter jurisdiction".

Maybe we saw the true nature of USCIS not in the staff-level decision, but in the higher-level decision to grant the green card, anyway, no matter what the staff had to say originally, and no matter that the agency's own lawyers were perhaps likely to win the contest in court.

(This item has been changed since it was originally posted to remove some inaccuracies.)