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Comparing AAO Footnotes June 4, 2014

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  • 1. Comparing AAO Footnotes By Joseph P. Whalen The first three footnotes presented below reflect AAO’s desire to fend off many reviewing courts’ tendencies to overstep their bounds. It seems that AAO would rather have a reviewing court simply remand a case to it for further consideration instead of being called “arbitrary and capricious” in its “abuse of discretion”. I personally like the added wording in the first excerpt below. However, I prefer the citations in the second excerpt. What do you think? The AAO maintains de novo review. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding on motion or as a result of litigation, the AAO maintains the jurisdiction to conduct a final merits determination as the official who made the last decision in this matter. 8 C.F.R. § 103.5(a) (1) (ii). See also Section 103(a)(1) of the Act; Section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f) (3)(iii)(2003); Matter of Aurelio, 19 I & N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions). Above From: MAR042014_01B3203.pdf and APR032014_01D8101.pdf The AAO conducts appellate review on a de novo basis. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir. 2012); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204 (b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions). Above From: APR302014_02B2203.pdf The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 P.3d 143, 145 (3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions). Above From: MAY192014_02B2203.pdf In this next footnote, AAO has indicated that it has added to the record of proceeding. In the realm of immigration proceedings, AAO appears to be the sole appellate body that can do this without going into the rhetoric of taking administrative notice just as a court may take judicial notice. AAO is within a “benefits granting agency” that primarily performs faceless, paper- based, de novo appellate reviews of paper-based, faceless, initial adjudication decision. AAO like the rest of USCIS performs its adjudications within an inquisitorial system as opposed to an adversarial system such as in removal or criminal proceedings. See http://www.whitehouse.gov/sites/default/files/omb/bulletins/2013jb-13-01.pdf Page 23, accessed on April 15, 2014, and http://www.whitehouse.gov/sites/default/files/omb/assets/bulletins/b10-02.pdf Page 24, accessed on April 15, 2014, and incorporated into the record of proceeding. Above from: APR232014_01B7203.pdf