Dr. Joseph Duffey, Director
United States Information Agency
301 4th Street SW
Washington, D.C. 20547

Mr. Del Pendergrast
Deputy Associate Director
United States Information Agency
301 4th Street SW
Washington, D.C. 20547

Les Jin, Esq.
General Counsel
United States Information Agency
301 4th Street SW
Washington, D.C. 20547

RE: EXCHANGE VISITOR PROGRAM - WAIVER REVIEW BOARD 22 Code of Federal Regulations § 514.44 (g), (h)

Gentlemen:

The American Immigration Lawyers Association ("AILA") is a voluntary bar association of more than 4,500 attorneys and law professors who practice and teach in the field of immigration and nationality law. AILA's member attorneys provide legal counsel to numerous colleges, universities, health care facilities, civic organizations, private businesses, and other entities which conduct exchange visitor programs. AILA has a long-standing and productive relationship with the United States Information Agency ("USIA"). We write here to request immediate attention to a serious matter of agency policy and procedure.

Exclusion of General Counsel from Proceedings of the Waiver Review Board

It has come to AILA's attention that the Waiver Review Board may have recently met without benefit of legal counsel -- indeed that legal counsel may have been deliberately excluded from the proceedings of the Waiver Review Board. We trust that nothing of the sort has occurred or will occur.

Excluding the Agency's legal counsel from the deliberations of the Waiver Review Board would be misguided, a marked departure from Agency practice, and in clear disregard of the letter and spirit of the Administrative Procedures Act, and outright dangerous. The Waiver Review Board rules on cases involving potential victims of political persecution or of exceptional hardship. The Board rules on cases wherein sister federal agencies intercede for the sake of the national interest, cases of medical research scientists, physicists, and the like. It rules also on cases in which USIA's Waiver Branch Chief cannot reach a settled judgment and seeks additional guidance.

Although Dissatisfied With Proceedings Before the Waiver Review Board, AILA Has Continued to Support USIA's Administration of the Exchange Visitor Program, Trusting to the Sound Judgment and Beneficial Influence of the General Counsel's Office

The American Immigration Lawyers Association has frequently expressed concern about the Waiver Review Board's practices of closed hearings, unrecorded proceedings, findings without articulated basis, votes without individual attribution, and barring the applicant as well as the applicant's legal counsel from the presentation of the case. Events bear out AILA's concerns. Proceedings before the Waiver Review Board should comport with respectable standards of due process.

Despite deep misgivings about the Agency's adjudicatory process, AILA has consistently supported USIA and USIA's administration of the Exchange Visitor Program. AILA's support springs, in large measure, from the demonstrated commitment of the General Counsel's Office to good government, fair and open proceedings, and sound administrative law and procedure.

The General Counsel's Office Brings Much to the Waiver Review Board's Deliberations and Decisions Without Which The Board Is Ill Equipped To Serve

AILA has trusted that the Waiver Review Board would recognize its position as an adjudicative body and actively seek guidance from the General Counsel's Office. The Waiver Review Board is charged with adjudicating cases as prescribed by statute and interpreted by regulation and case law -- as the relevant statutes, regulations, and precedent cases are read and understood at law. The Waiver Review Board is also charged with weighing program, policy, and foreign relations aspects of cases -- as the Exchange Visitor Program, Agency policy, and USIA's participation in foreign relations are defined, limited, and directed by statutes and executive orders which grant USIA existence and authority to act at all.

The General Counsel's Office brings much to the deliberations of the Waiver Review Board. The General Counsel's Office comes with an understanding of the Immigration and Nationality Act, from which the cases before the Board spring. The General Counsel's Office comes with a professional's understanding of the Fulbright-Hayes Act and its predecessor, the Smith-Mundt Act, which are the basic enabling legislation for the Exchange Visitor Program. It is these statutes which give the Exchange Visitor Program, all policies pursuant thereto, and USIA itself both life and legal limits. Additionally, the General Counsel's comes with a working knowledge of the rules of evidence and due process, as well as deep subject matter expertise in the regulations governing exchange visitor programs. To be noted, the General Counsel's office carefully discussed with the exchange visitor community -- and not least with AILA -- the structure and substance of the present exchange visitor regulations. The Agency's institutional memory of the meaning and intent of individual regulatory provisions reposes in the General Counsel's office. This institutional perspective merits due deference.

AILA has trusted that, at a bare minimum, the Waiver Review Board would see the importance of acting lawfully. The role of the General Counsel's Office is, finally, to help the Agency proceed according to law. That the Waiver Review Board might prefer not even to hear the Agency's counsel is preposterous. Willful disregard for law is, as we all know, the stuff of law suits, and Congressional hearings.

How the Waiver Review Board, wishing to perform well, could resolve to forego the expertise and perspective of the General Counsel's Office is mysterious at best. At worst the Board's refusal to hear counsel manifests an alarming indifference to law and legal consequences. Neither alternative inspires confidence.

Neither Present Regulations Nor Proposed Regulations Contemplate Excluding Legal Counsel From Proceedings Before or Deliberations of the Waiver Review Board. Any Such Departure From Established Practice Would Be Particularly Inappropriate And Cause for Complaint.

Pending is the Agency's present rule-making on the composition of the Waiver Review Board. AILA's comment on the proposed regulation voices our disquiet at entrusting quasi- judicial functions to persons, who may lack legal training or judicial experience. Waiver cases often involve legal issues which are properly decided as matters of law. On occasion, waiver cases depend entirely on matters of law. AILA's comment on the proposed regulation recommends that cases for the Waiver Review Board go first for legal review to the General Counsel's Office. The General Counsel should forward to the Board only those cases which turn on legitimate issues of agency policy and foreign affairs and cannot be settled on legal grounds. Such screening is urgently needed if the Waiver Review Board intends to exclude, ignore, or discount legal counsel.

AILA notes that the Agency's rule-making on the Waiver Review Board neither states that legal counsel is to be absent from proceedings before the Waiver Review Board, nor explains any reason for such a departure from established Agency practice. Nothing of this sort appears to be contemplated by the proposed regulatory change, and for good reason. Excluding legal counsel from the deliberations and decision-making of the Board would fly in the face of common sense and risk grave harm to individual exchange visitors and to the Agency alike.

The present rule-making gives no notice or rationale for eliminating legal counsel from any portion of proceedings before the Waiver Review Board. Were the Agency to embark on such a course without full and formal notice and comment, AILA would view the matter as contrary to the letter and spirit of the Administrative Procedures Act and basic norms of good government.

We would happily receive assurance from the Agency that no such departure from established agency practice is contemplated and that any such change will not be undertaken outside the norms of good government and full adherence to notice and comment procedures.

Respectfully submitted,

Alan S. Musgrave, Co-Chair, AILA/USIA Liaison Committee
William Dance, Co-Chair, AILA/USIA Liaison Committee
Howard W. Gordon, Director of Information
Elissa M. McGovern, Senior Policy Analyst
AMERICAN IMMIGRATION LAWYERS ASSOCIATION