Dangers of Sua Sponte Issue Exhaustion and Unnecessary De Novo Review            By Joseph P. Whalen (April 26, 2012-Updat...
BIA sua sponte addresses an otherwise unexhausted issue, failure to raise      the issue on administrative appeal may be e...
in addition to the review of the mixed question of fact and law as to the review ofjudgment that the Government brief over...
A case that has provided some cautionary guidance on AAO’s full de novoapproach that may have been overlooked for its less...
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Dangers of sua sponte issue exhaustion and unnecessary de novo review

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Dangers of sua sponte issue exhaustion and unnecessary de novo review

  1. 1. Dangers of Sua Sponte Issue Exhaustion and Unnecessary De Novo Review By Joseph P. Whalen (April 26, 2012-Updated May 2, 2012)A recent non-precedent from the Third Circuit is yet another example in a long lineof cases that I view as a reason for Administrative Appellate Bodies to use cautionbefore exhausting issues sua sponte. If the agency raises an issue that the appellantdid not and gets it wrong, they will be taken to task by the reviewing court. On theflipside of that is the way that the reviewing courts will very liberally construe anyPro Se filing. If a Pro Se “brief” even vaguely or remotely touches on an issue andthe agency overlooks or ignores it, the reviewing court will take them to task forthat as well. What’s the old saying? “Damned if you do and damned if you don’t.”Vargas- Sunaz v. Att’y Gen, No. 11-4091 (3rd Circuit, April 25, 2012)1 includedsome interesting footnotes as follows: 2 The Board also held that Sunaz’s 2009 conviction−which was not charged as a basis for her removal−“is per se a particularly serious crime that bars withholding of removal.” We note, however, that the “particularly serious crime” inquiry is confined to the facts underlying the crime upon which removal is predicated. Lavira v. Att’y Gen., 478 F.3d 158, 162, 165 (3rd Cir. 2007). 3 The Government asserts that we lack jurisdiction over Sunaz’s attempt to challenge her aggravated felon status because she did not raise the issue before the BIA. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (stating that “an alien is required to raise and exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve the right of judicial review of that claim”). We disagree. In her brief on appeal to the BIA, Sunaz argued that the IJ erred in denying her asylum and withholding applications because of her convictions. Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006) (recognizing a “liberal exhaustion policy”). Moreover, the BIA affirmed the IJ’s conclusion that Sunaz’s 2004 conviction was an aggravated felony. Lin v. Att’y Gen., 543 F.3d 114, 123- 24 (3d Cir. 2008) (noting that when the1 http://www.ca3.uscourts.gov/opinarch/114091np.pdf Page 1 of 4
  2. 2. BIA sua sponte addresses an otherwise unexhausted issue, failure to raise the issue on administrative appeal may be excused).In the above case, the Government filed a Motion to Dismiss which was denied.The particular circumstances and procedural history in the case did not deprive thecourt of jurisdiction as asserted in the Government Motion. The very liberallyconstrued Pro Se “brief” raised an issue sufficiently to allow the court to find itsjurisdiction to review the decision as to a mixed question of fact and law. Suchmixed questions require the application of a judgment on the merits. Unlike in thematter of fact-finding below, which is confined to precise standards of review suchas: for “substantial evidence”, “clear error”, or when the reviewer takes Official“administrative or judicial notice” of specific facts widely-known or which areamong “current events”, judgment is always fully reviewable by any agencyappellate body or reviewing court. “.... We have jurisdiction, however, to the extent that Sunaz’s pro se brief challenges the BIA’s application of the law governing CAT protection to the undisputed facts of record. Toussaint v. Att’y Gen., 455 F.3d 409, 412 n.3 (3d Cir. 2006). Sunaz alleged that she had been harassed in the Philippines because of her sexual orientation. She claimed that while living there she was often teased and beaten by other students. In 2007, Sunaz returned to the Philippines to attend her grandmother’s funeral. While there, she was taunted by a group of young men at a flea market because of her appearance. One of the men slapped her in the face. The police were called, but they did not take any action. Sunaz claimed that she will face the same type of harm if she is removed to the Philippines. These facts, however, fail to demonstrate that what is likely to happen to Sunaz satisfies the legal definition of torture. 8 C.F.R. § 1208.18(a)(1). Therefore, we will not disturb the BIA’s conclusion that Sunaz failed to meet her burden of proof for deferral of removal under the CAT.”As illustrated by this case, the agency’s actions in considering a conviction whichwas not included in the charging document as a basis for removal opened a doorwhich provided the court with yet another criticism of the BIA decision. This was Page 2 of 4
  3. 3. in addition to the review of the mixed question of fact and law as to the review ofjudgment that the Government brief overlooked.This minor case can serve as fodder for a cautionary tale to USCIS as well asEOIR. The AAO 2 is currently supposed to be preparing a Notice of ProposedRulemaking (NPRM) on Appeals, Motions, and its own Reform. The NPRM isoverdue. It was supposed to be published in March 2012, as indicated in theRegulatory Agenda which was published in the Federal Register in January 2012.I bring up the AAO because it routinely performs full de novo reviews whetherneeded or not in most cases. Conversely, AAO sometimes incorrectly dismisses orrejects some cases quite arbitrarily without any discussion of the merits based onrather nonsensical procedural grounds. AAO has been shielded from more criticalreview from the courts because their decisions are generally challenged in Districtrather than Circuit Courts, which results in less critical press. Think about it, I am.While awaiting the much anticipated and long overdue AAO Reform efforts tomaterialize, we are left with guidance gleaned from prior decisions such as followsfrom this rather ubiquitous blub and accompanying footnote: “The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 38 1 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal. 1 An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff’d 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis).” _________________ “1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(l). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988).”2 U.S. Citizenship and Immigration Services (USCIS) contains an Administrative Appeals Officewhich issues decisions on challenges to certain Immigration and Citizenship Benefits Denialsissued by the Service Center, Field Office, and District Directors. Page 3 of 4
  4. 4. A case that has provided some cautionary guidance on AAO’s full de novoapproach that may have been overlooked for its lesson on the dangers of doingmore than necessary is the Ninth Circuit review of an I-140 petition filed on behalfof an alien of extraordinary ability, specifically, Kazarian v. USCIS, 596 F.3d 1115(9th Cir. 2010). Everyone else seems to be obsessed with the obvious and mayhave overlooked an underlying concept. Yes, AAO conflated the two-steps of ananalysis process into a single-step adjudication process. However, I have not seenvery many folks (none really) paying much attention to the fact that the ultimatedecision of the Ninth Circuit was that the petition under review was not supportedwith sufficient evidence to meet the threshold showing which was the essence ofthe first step. AAO proceeded to go beyond the rudimentary first step andtherefore the Ninth Circuit had to address the whole thing which may have beensomewhat distracting as to that key point. This reality may have drawn readers’attention away from the fact that since the first part of the process lead to a properconclusion which was to deny the petition, there was no need to proceed withanything beyond that finding. The AAO decisions post-Kazarian routinely go toofar.In a non-precedent decision dated June 20, 2011 3, the AAO demonstrated thefutility of its continuing misconstrued understanding of the point I am trying tomake. “In this case, the AAO concurs with the directors determination that the petitioner has failed to demonstrate her receipt of a major, internationally recognized award, or that she meets at least three of the ten categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). A final merits determination that considers all of the evidence follows.”If the evidence fails to establish that an initial threshold showing has been made,that is, “the petitioner failed to demonstrate .... minimum eligibility” why go anyfurther? It is a waste of resources to conduct the final merits determination!Unnecessary analysis creates an opportunity to make mistakes that will come backto haunt AAO later. I would not reach an issue unless required to do so. I havelearned the hard way that the best way to keep your foot out of your mouth is tokeep your mouth shut when circumstances do not dictate otherwise.3 http://www.uscis.gov/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2011/Jun202011_01B2203.pdf Page 4 of 4

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