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Adjudicating Benefit Requests
And Practicing Administrative Law
In an Inquisitorial System
By Joseph P. Whalen (May 16, 2014)
The concept of justice in America is, to say the least, confused in
the minds of the American public. Popular stories dating from literary
works, through stage, the big screen, TV, computers, and now even in
handheld devices, has given rise to some peculiar notions. Sherlock
Holmes, Perry Mason, Dragnet, and Law and Order to name a few,
have focused on investigations and the criminal justice system with
its “innocent until proven guilty” approach with a heavy burden
of proof on the government prosecutors to prove that guilt “beyond
a reasonable doubt”. That type of proceeding is adversarial in
nature, in short, a dogfight, usually NOT to the death BUT that can be
Inapposite to the adversarial system is the inquisitorial
system. Stemming from our earliest civilizations the “wise ones
among us” have sought the truth. Please think about the inquisiting
magistrates of the English common-law based systems still thriving
today in many nations. Even in U.S. Courts, we have Magistrates who
act as case managers and fact-finders for the District Court Judges.
Our Magistrates, working within an arm of our adversarial system,
are primarily seeking the truth in an inquisitorial manner just like
Administrative Branch Adjudicators do. These individuals delve
deeply into the underlying facts and factors in the case in order to
make recommendations to the District Court Judges who will
ultimately preside over and rule upon a case at bar.
The inquisiting Magistrate is an excellent role model for
Administrative Branch Adjudicators to emulate. USCIS employs such
Adjudicators to make decisions on immigration, naturalization,
citizenship and related claims for the multitude of applications and
petitions filed each year, which number in the millions annually.
Practitioners filing such forms with USCIS would do their clients and
themselves a big favor to accept the reality of the system in which
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The only exception to the above is in the beginning stages of a
Removal Proceeding before an Immigration Judge (IJ) within EOIR
where the burden of proof starts out upon the shoulders of the
government. However, once the simple facts, of (1.) alienage, and (2.)
inadmissibility or deportability, collectively, removability, are
proven, then the alien respondent usually seeks some form of relief
and the burden shifts to them to prove eligibility. Once again, the
practitioner will find him or herself in an inquisitorial system when
seeking any kind of relief, amelioration, or in other words, a benefit
under immigration, nationality or related law. In essence most
Removal Proceedings morph into benefit requests. If an IJ can kick
something over to USCIS to handle then that is what usually happens.
The majority of cases in our inquisitorial immigration system
are decided based upon the standard of proof known as the
“preponderance of the evidence” standard. There are some notable
exceptions such as naturalization, or proving the bona fides of a
marriage, or other facts and factors here and there. You really have to
refresh your memory on the statutes, regulations, precedents, and
policies when delving into something out of the ordinary or out of
your comfort zone. Before moving forward with this essay, we all need
to be clear on exactly what “preponderance” means in connection
with this standard of proof. Please remember that it is ultimately the
preponderance of the believable, reasonable, rational, in short:
credible facts that can be gleaned from the evidence
presented that needs to be the focus of the adjudication as well as the
case preparation and presentation. The evidence presented must be
worthy of consideration and of high quality and most importantly,
point to the truth. That means that it is the quality of the evidence
that matters most. Quantity in relation to evidence under the
preponderance standard should be measured in the number of facts
that can be counted rather than number of pages presented. The
facts, when applied to the rule (statute, regulation, or precedent) and
agency policies, must allow for reasonable inferences leading to a
proper conclusion. The old “kitchen sink” approach to selection
and submission of evidence does nobody any good. That approach is
very counterproductive. Burying an Adjudicator under a plethora of
useless, pointless, worthless, evidence of nothing only prolongs
processing times and draw suspicion which in turns slows things
down even further. Some folks might try that approach in an effort to
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obfuscate because they know that the case is a dud and they are just
biding their time. Far too often that is NOT the case. Far too often,
the kitchen sink approach is used by unrepresented form filers or
practitioners who are inexperienced or inept. Extraneous materials in
the record and outrageous claims made in any benefit (or relief)
request lead an IJ, or Adjudicators on behalf of their Director, or AAO
to describe the evidence with terms such as hyperbolic, baseless,
pointless, worthless, or worse such as misleading or plain old false.
To both the applicants/petitioners/counsel, as well as the
adjudicators, with that entire discussion in mind, please ask yourself
some questions. Please start with questions such as:
What facts do I need to prove to obtain the benefit (or
relief) I want? OR What facts would support the request?
What documentary evidence will support findings of fact
that will support the request?
Where can I get such documentary evidence? OR What
might be a reliable source of evidence to allow to be
o Court clerks?
o Census records?
o Hospital records?
o Other medical records?
o Police reports?
o County Clerks?
o Vital statistics departments?
o Motor Vehicle Departments?
o Bank statements?
o Travel itineraries?
o Credit card or other receipts?
Should I obtain (or allow) the oral testimony of witnesses?
o Who has firsthand knowledge?
Older family members or friends.
Younger family members or friends but only if
they were present and were old enough to
o Who would likely or could only present hearsay?
Someone who only heard “stories”.
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Someone who was not old enough to remember.
Someone who was not even born yet.
Someone who was not present.
o Can I use (or allow) an Expert Witness on a topic? If
yes, then who?
Psychologist or Psychiatrist?
I think that that is enough for now. Be on the lookout (BOLO) for
follow up articles on related topics. Such follow ups might include
discussions of qualitative and quantitative analytical techniques and
approaches; statistical methods; matters pertaining to an exercise of
discretion, when allowed; or perhaps a tirade on the meaning of
“sound judgment”. Please check back again soon and find out.
That’s my two-cents, for now.
Joseph P. Whalen, Independent EB-5 Consultant,
Advocate, Trainer & Advisor
1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218
Phone: (716) 604-4233
web http://www.slideshare.net/BigJoe5 or
DISCLAIMER: Work is performed by a non-attorney independent business consultant.
It is the client's responsibility to have any and all non-attorney work products checked by
an attorney. I provide highly-individualized training based on consultation with my
clients. I serve Regional Center Principals and their counsel, potential EB-5 investors,
and project developers. I am not an attorney myself although I have trained numerous
attorneys and INS/USCIS adjudicators in complex issues within immigration and
nationality law when I was an adjudicator there for many years. I do not prepare forms,
write business plans, or create economic analyses. I do review them for clients prior to
submission and suggest corrections and/or modifications to run by your attorney
and investment advisor.
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