New Leader for USCIS Appeals Office Could Mean More Transparency

By David North on February 26, 2018

The headline may not automatically grab the reader's full attention — the agency's very name, Administrative Appeals Office,  sounds like a snooze in the making — but the announcement stirs hope for a little more transparency in a part of the government's immigration machinery that currently believes that total privacy, including for lawyers, is much, much more important than the public's right to know.

Before elaborating on that point, let's deal with the underlying setting. The AAO, which is part of the Department of Homeland Security, is one of several semi-judicial appeals bodies in the immigration field; two others are the Executive Office for Immigration Review in the Justice Department (where the immigration judges toil) and the Board of Alien Labor Certification Appeals (BALCA) in the Department of Labor.

If the initial application for many kinds of immigration benefits (such as the hiring of an alien worker) is denied by the staff (which happens in only a small minority of cases), the applicant can appeal to AAO. All of this occurs within U.S. Citizenship and Immigration Services (USCIS).

Recently, the fairly new USCIS boss, L. Francis Cissna, removed the civil servant in charge of AAO, an appointee from the last administration, Ron Rosenberg, and sent him to lead another USCIS agency, the Potomac Service Center in my hometown, Arlington, Va. This was a reciprocal switch, as Cissna then appointed the head of that agency, Barbara Velarde, to head AAO. It is probably a lateral movement for both of them in terms of their civil service standing.

I do not know either of them, but with a new person in charge, maybe, just maybe, AAO will renounce its current policy of extreme privacy for all concerned, a policy that is in sharp contrast to the privacy rules of both EOIR and BALCA, and most American courts.

Routinely in most court cases (except a few involving minors), the public is told the names of the parties in the case, those of their lawyers, and those of the judge or judges. These are public cases, always funded by the taxpayers, and often involving public policy issues.

However, in the AAO cases, all of the names of the petitioners, the aliens, the presiding judge or judges, and the lawyers involved are kept secret.

I am not sure that I am adamant that the alien's name need be made public, as it never is in AAO cases, but I am quite certain that the names of the judges and the lawyers should be a matter of public record. Does the judge routinely side with the aliens or the government? What is the lawyer's won-lost record? It seems to me that these are legitimate questions, the answers to which AAO systematically buries, as we have noted in the past.

Before an AAO decision can be published, AAO's clerks take a heavy black pencil to any element in the document that might indicate anyone's name, including the geographical location. Some passages in some decisions are redacted to the point of incomprehensibility.

There are practical ramifications of these privacy rules. There was, for example, a situation some years ago when some "attendants and servants" to diplomats (who were working here temporarily on A-3 visas) thought they had a chance to get green cards. Scores if not hundreds took their cases to USCIS, lost every one, and then turned to AAO, where every appeal was lost. Who were the DC-area immigration lawyers who took money from this hapless class of aliens to file certain-to-lose appeals?

Shouldn't everyone potentially interested know their names, so that they could get legal help elsewhere? Of course, but AAO always suppresses that information.

Were AAO's rules to apply to Supreme Court cases, this is all we would know about those participating in Brown v. The Board of Education: "The Matter of B-O-E-".

That would be it. Nothing more. We would never know that the Supreme Court, led by Chief Justice Warren, had voted unanimously to desegregate the schools of the nation; we would never learn of Thurgood Marshall's role in the case; nor would we know about the courageous mail carrier (Oliver Brown) who brought the case; or the location of the offending school board (Topeka, Kan.) All we would know was that one side had won, and why.

Maybe Velarde, the new boss of AAO, will change the agency's extreme privacy rules. Maybe she won't.