Baseball Crank
Covering the Front and Back Pages of the Newspaper
March 5, 2009
LAW/POLITICS: Waiting For Bureaucrats To Say It's Time To Make The Donuts

One of the benefits of reading a lot of judicial opinions, as I do, is that you get to see a lot of retail examples of how our government operates at its most legalistic-bureaucratic. Yesterday's opinion by the U.S. Court of Appeals for the First Circuit in River Street Donuts, LLC v. Napolitano is a wonderful little vignette about a bureaucratic system run amok.

River Street runs a donut baking operation, and in January 2003, it wanted to hire a new head donut baker/supervisor for a salary of about $40,000 a year. This is your basic business decision - hire a new baker, try to grow the business - but there's a catch: the guy they wanted to hire, a man named Farag Mohamed, is a foreign national, so River Street needed the approval of the Bureau of Citizenship and Immigration Services to sponsor a work visa for Mr. Mohamed.

At this point, some readers will balk at the fact that River Street wanted to bring in a foreigner, but in a sane world, if a business has a skilled laborer they want to offer a job to, as long as there's not some other reason to keep the guy out of the country, this should not be a terribly onerous process.

But here's where things get complicated. Because BCIS demands that River Street submit proof that it can afford to hire Mr. Mohamed to make donuts, and after reviewing River Street's 2001 and 2002 tax returns, BCIS tells River Street that it knows River Street's donut business better than the company does, and they can't afford a $40,000 a year donut baker. Whereupon River Street enters the mad world of administrative law litigation, proceeding up through the Administrative Appeals Office of Homeland Security and ultimately to a federal court of appeals, consuming six years of litigation that almost certainly cost them more than $40,000 and did not produce any donuts. The First Circuit ultimately upheld the BCIS' and AAO's decisions, rejecting River Street's arguments about how to allocate depreciation in determining its financial strength. The opinion is mostly about administrative procedure, and I can't really quibble with the court's legal reasoning, but I still stand in some awe of the insanity of the entire exercise. Should it really be this complicated and bureaucratic to hire a guy to bake donuts? And is this a preview of the future of the financial and health care sectors?

Now, I don't know any more about this particular case than what's in the court's opinion, so I can't tell you if River Street made a good business decision to hire Mr. Mohamed or if he'd be a good person to have in this country. And I understand that, as with many such legal rules and regulations, there are arguments for why you need this sort of regulation: to make companies think twice about hiring foreigners instead of Americans and to ensure that people don't get brought in on work visas for jobs that dry up.

But no matter how you slice it, making a company spend years and legal fees trying (in this case unsuccessfully) to justify their own business decisions to second-guessintg bureaucrats and judges is a recipe for economic paralysis (as well as an inducement to seek to do business instead on the black market). You can write this off if you will as a symptom of our screwed-up immigration laws, which are simultaneously draconian in their terms and tepid and sporadic in their enforcement, but the nature of bureaucracy is universal and not unique to BCIS. I fear that in the years to come, a lot more businesses large and small are going to be living through similar experiences.

Posted by Baseball Crank at 12:00 PM | Law 2009-13 | Comments (7) | TrackBack (0)
Comments

One more reason to kick a lawyer in the balls today.


Posted by: Zufall at March 5, 2009 2:41 PM

Don't blame the lawyers. I'm curious as to why the business bothered with the appeal given the expense of it.

Posted by: MVH at March 5, 2009 3:06 PM

Hey Crank and any others in the lower Manhattan area-if you want to be entertained there is a municipal union rally in front of city hall protesting the proposed "dangerous cuts" in municipal programs and jobs. Its really fun to watch and listen to these people and realize they have no idea whatsoever how an economy works or how the policies that they are expousing are cutting their own throats.

Posted by: dch at March 5, 2009 4:36 PM

Look, Crank, I can't actually prove Farag is a terrorist, but there's a reason that River Street appealed this and it isn't because rolling donuts is such a refined skill. They're importing terrorists and, lucky for us, they were stopped in their tracks by the U.S. government.

Dude's name was Farag. I think that's "denogginizer" in Farsi.

Posted by: spongeworthy at March 5, 2009 7:25 PM

Hey MVH,
I sure as hell ain't any teacher's fault.

Do you think electrical engineers write laws and bureaucratic protocols?

No, lawyers do.

Why are laws and protocols written in such a way as to not be effective but always cover one's ass?

Because, in the words of his honor, Governor Lapetomaigne, "Gentlemen, we must do something to protect our phony-baloney jobs!"

Posted by: Zufall at March 5, 2009 8:24 PM

"is this a preview of the future of the financial and health care sectors?"

A preview? Ssec and Medicare are in debt to the tune of $tens of trillions of dollars (what is it up to now, like 50-something?). And Obama wants to make that look like chump change.

I wish it was just a preview.

Posted by: Tman at March 6, 2009 8:38 PM

While I'm not much of a fan of the INS, I think there are legitimate grounds for them to intervene in cases like this (just as they examine the validity of marriages with aliens). The big battle for the INS is to keep people likely to overstay visas or other programs out of the country in the first place, as it is easier to keep them out than to find them and kick them out once they overstay. If the donut shop goes broke in 3 months Mr Mohamed is in the country and likely to stay and find another job. Or the owner could simply be trying to get Mr Mohamed into the country for some other reason (friendship, favor to his uncle, or perhaps a more nefarious reason) with no real intention to keep him employed any longer than necessary to keep the INS off his back.

If you're going to have immigration quotas, any visa program (tourist, guest worker, or whatever) is going to have to be policed for fraud and abuse. Otherwise the limits are meaningless. Anytime the government says you can do this for reason A but not reason B, someone in the government will end up substituting his judgement of your motivation for whatever your motivation actually is. And, IMHO, looking at the summary of the shop's financial returns in question the INS was at least reasonably justified in its decision.

Posted by: phwest at March 11, 2009 2:06 PM
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