Different Reviews for Different Underlying INA Proceedings                                By Joseph P. Whalen (June 30, 20...
Secretary of Homeland Security [Secretary]                          Department of Homeland Security [DHS]        USCIS    ...
Approval for the type of visa, for which one may be found eligible and qualifiedfor, is a minor accomplishment. It merely ...
preference (FB-1)3, or a married son or daughter and their spouse and “child(ren)”as FB-3s, and lastly, the USC’s sibling ...
USCIS accepts and adjudicates employment based visa petitions. Denials areappealable to the USCIS’ Administrative Appeals ...
naturalization may request de novo review in the U.S. District Court of jurisdiction.As with other District Court cases, a...
admission or might deny admission. Denials come in varying forms. Often, peopleare put back on the vessel that brought the...
ConclusionThe underlying approaches amongst the various agencies is diverse. The powersexercised are variable. It is no su...
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  1. 1. Different Reviews for Different Underlying INA Proceedings By Joseph P. Whalen (June 30, 2012)In the broad array of varying types of proceedings in which legal provisions of theImmigration and Nationality Act (INA) are applied, enforced, or adjudicated; a widevariety of approaches, processes, and procedures come into play. Given the variablenature of the underlying proceedings, it is not surprising that the appellate reviews ofthose proceedings, when available, also vary in nature.Certain unreviewable, summary judgments are at the sole discretion of the decision-maker and completely unreviewable through any enforceable right. That being said,reconsideration by that decision-maker through sua sponte action is always available.Additionally, even though a decision is “technically” unreviewable, the decision-makers do exist in the real world and in the real world, those decision-makers workfor somebody 1. That “somebody” has an interest in making sure that their power andauthority are being exercised, and that the law is applied, correctly, fairly, andappropriately. This reality check is necessary because in reality, the “decision-maker”is exercising statutory authority that has been vested in a particular Executive BranchOfficial. The main Officials are the Secretary of Homeland Security, Secretary ofState, and the Attorney General. Although these Cabinet Level Officials are the maindelegates named in the INA, they are not the only ones named. Additional Secretaries 2and the President, as well as the Courts, have specific authorities assigned to them byCongress. However, for purposes of this discussion, the big three Cabinet LevelOfficials will be sufficient. I will refer to their Departments and Agencies as needed.Here are some reference charts. Attorney General [A.G.] Department of Justice [DOJ] Divisions/Components EOIR [ an “Agency”] USAOs CRT OIL OSC OCAHO BIA OCIJ Prosecute Various DC Div. App. Div. Investigates Decides Hears IJs inViolations from Civil Defends the Defends the & Files employer appeals Imm. Rights Abuses to Govt. in Govt. in IRCA penalties in from IJ Courts Illegal Reentry District Courts of violations cases from and hear[DOJ has numerous Court Appeals by ICE and certain cases other divisions and Immigration Immigration employers OSC & DHS from components.] Litigation Litigation filed w/ IMBRA Decisions DHS, & OCAHO Violations MTRs1 See Consular Corner by Liam Schwartz in Immigration Daily at:http://www.ilw.com/articles/2012,0629-schwartz.pdf2 DOL and HHS have key roles not germane to this discussion. Page 1 of 8
  2. 2. Secretary of Homeland Security [Secretary] Department of Homeland Security [DHS] USCIS ICE CBP Others All three can issues NTAs (Notices to Appear) for Removal Proceedings DHS contains multipleAdjudicates Benefits May Reinstate Removal Orders & Institute components, directorate,Requests and decides Expedited removal of Limited Classes of aliens. office, and agenciesmotions and appeals of Enforces the Enforces and Protects covering a wide array ofsame. Has its own AAO Immigration and U.S. borders through issues and statutes.(Administrative Appeals Customs laws in the Inspectors and BorderOffice) which can issue interior of the U.S. and Patrol. May grant or deny Included are the CoastPrecedent Decisions under has an international entry of people, vessels Guard, and componentsdelegated authority of the component. Has various and goods (including devoted to chemical andSecretary, the same as the components: HSI, DRO, agricultural products). nuclear safety, FEMA, theBIA does for the Attorney the ICE Advocate, an d May initiate Expedited Secret Service, The UnitedGeneral. Can grant the SEVP Appeals Team Removal or refer aliens to States’ counterpart toAsylum, Naturalization, (SAT) which issues Immigration Court. May INTERPOL, Cybersecurity,and issue Certificates of appellate decisions on I- fine transportation and more...Citizenship after deciding 17 or SEVIS School companies, & issuessuch claims. Detects Fraud Certifications and various Customsand works to protect Withdrawals, and more... Rulings.National Security (FDNS). Secretary of State [Secretary] Department of State [DoS] Bureau of Consular Affairs [CA] Others Embassies & Consulates Passport Agency Various activities and functions areDecides on requests for Visas, may Issues passports and may decline to do so under carried out byrecognize claims to U.S. Citizenship certain specific circumstances. DoS.abroad (FS-240), or may document a Lossof Nationality or Expatriation. May issue passports abroad to Citizenship One example is Claimants born abroad as proof of citizenship. the DiplomaticMay provides services to U.S. Citizens Minors may be issued the Consular Report of Security Serviceabroad as well as determine Refugee status Birth Abroad (FS-240) as well as the Passport (DSS) providing(often with the aid of USCIS). needed for travel, but after age 18, the FS-240 protection and will not be issued. The same stringent standards performingInvestigates country conditions and gathers apply when the passport will proof of variousintelligence for use in asylum and citizenship. Some passports are provisional to investigations.numerous other cases, such as international allow entry to pursue the claim with USCISadoptions. DHS often has a presence. instead.SummaryAbove is a review of, and an introduction to, the major players in Immigration-related adjudications and enforcement under the INA. The next section will delveslightly deeper into the standards, processes, and procedures employed in thevarious underlying proceedings and their appellate reviews and/or motions andrequests for reopening or reconsideration.Visa “Classifications” Page 2 of 8
  3. 3. Approval for the type of visa, for which one may be found eligible and qualifiedfor, is a minor accomplishment. It merely entails a showing of sufficient evidenceto prove a relationship or certain qualifications. In essence, it is meeting a statutorydefinition. These adjudications are not discretionary; they address legalentitlements and merely involve legal interpretations and weighing evidence.These call for an application of sound judgment in interpreting the law andweighing that evidence. The mechanism for getting the U.S. government toacknowledge the relationship or qualifications is the visa petition. An approvedpetition merely says, “Yes, A is B’s father”, or “X has Y qualifications”, andnothing more. That is all a “classification” is. However, it does not end there forthe intending immigrant.Visa PetitionsThe would-be immigrant most often starts out as the beneficiary of a visa petition.DHS through USCIS accepts and adjudicates visa petitions of many varieties. Visapetitions come in two broad categories with numerous sub-categories. The vastmajority of immigrant visa petitions are family-based petitions but although not asplentiful, employment-based immigrant visa petitions are often more complexadjudications. These two broad categories are broken down further into manydifferent “classifications”. The approval of a visa petition is merely a preliminarystep and does not necessarily result in the issuance of an actual immigrant visa.Family-Based ClassificationsFamily-based categories come in two broad varieties. The alien relative might bethe “immediate relative” (IR) of a U.S. Citizen (USC) or a “preference” categoryrelative of either a USC or lawful permanent resident (LPR) petitioner. The spouse,parent, and minor (unmarried, under 21 y/o) “child(ren)” of a USC has animmigrant visa “immediately available” for allocation under the statute and istherefore categorized as an Immediate relative (IR).The USC may also petition for an unmarried adult (21 yrs and older) son ordaughter (note: “child” is precisely defined by statute) as a family-based, first Page 3 of 8
  4. 4. preference (FB-1)3, or a married son or daughter and their spouse and “child(ren)”as FB-3s, and lastly, the USC’s sibling (and his or her spouse and children) as FB-4s. That just leaves the FB-2s who are the relatives of LPR petitioners. F2-A isreserved for the spouse and minor (unmarried, under 21 y/o) “child(ren)”, and F2-B is for their unmarried adult (21 yrs and older) son or daughter and their minor(unmarried, under 21 y/o) “child(ren)”. Married sons and daughters of an LPR donot get visas, it is for that reason that many will remain unmarried, concealmarriages, or fraudulently divorce.USCIS decides if the evidence presented by the petitioner establishes the claimedfamilial relationship. This can be quite complicated when dealing with folks fromcountries with very poor quality vital statistics records or rampant fraud. Inaddition, there are issues concerning the legality of marriages, divorces, adoptions,as well as issues relating to legitimation of a child born out-of-wedlock. There arefake marriages, fake divorces, fake death certificates, fake adoptions, and issuesrelating to incestuous relationships and polygamy. Often people will claim ayounger sibling or a sibling’s child as his/her own child and that’s when blood testsor DNA tests may be requested. In the event of a denial of most family- based visapetitions, they have a right to appeal the decision to the Board of ImmigrationAppeals (BIA or Board) within the Executive Office of Immigration Review(EOIR) an agency within the Department of Justice (DOJ) and potentiallyappealable to the Attorney General (A.G.). Beyond that administrative path,judicial review is available.Employment-Based ClassificationsAll EB visa categories are “preference” visas. The significance of the “preference”system is that there are annual statutorily prescribed limits on the overall numbersof these visas, per country limits, and tiered levels tied to the desirability of havingpersons with certain qualifications come to the United States. The statute providesfor five broad categories but some of them have multiple sub-categories.3 The DoS Visa Bulletin will state F1, however, that may confused folks because F-1 is the visacategory for a non-immigrant academic student. I will use FB for certain family based categoriesand EB for employment-based. Page 4 of 8
  5. 5. USCIS accepts and adjudicates employment based visa petitions. Denials areappealable to the USCIS’ Administrative Appeals Office (AAO). UnfavorableAAO decisions may be challenged under the Administrative Procedures Act(APA) in a U.S. District Court which may be appealed further in the Courts. Notvery many AAO Dismissals go beyond the District Court so the AAO has lessbinding court precedent to deal with. That situation might be viewed as good orbad, or more appropriately, it is “ambiguous”.AAO ReviewsThe decisions appealable to AAO most often entail a faceless, paper-basedunderlying adjudication from an inquisitorial process. AAO usually also performsa faceless, paper-based review and rarely ever hears oral argument. It is for thesebasic reasons that AAO may perform full de novo reviews of any case presented toit. AAO has jurisdiction over all employment-based visa petitions that have appealrights.AAO is currently supposed to be working on a Notice of Proposed Rulemaking(NPRM), which is past due. The DHS regulatory agenda and plan anticipated anAAO NPRM in March 2012, and that date has come and gone. We shall have towait and see what happens.Other USCIS ProceedingsOther underlying USCIS proceedings that involve face-to-face interviews havedifferent administrative and judicial review and appeal paths. Adjustment of status(AOS) via form I-485, as well as affirmative asylum applications via form I-589,may be renewed in Removal Proceedings before an Immigration Judge (IJ). The IJmay grant or deny AOS, asylum, or certain other forms of relief from removal, ormay order removal. The Removal Order may be appealed to the BIA. When theBIA upholds the IJ, that decision may be appealed to the U.S. Circuit Court ofAppeals for that jurisdiction.When USCIS denies naturalization, there is a local field office “second hearing”available via form N-336. When that challenge fails, the applicant for Page 5 of 8
  6. 6. naturalization may request de novo review in the U.S. District Court of jurisdiction.As with other District Court cases, an unfavorable decision may be furtherappealed in the courts.BIA ReviewsThe BIA reviews decisions from two major distinct venues. The IJ cases involveface-to-face adversarial proceedings. Those cases result from an IJ’s observationsas to credibility of testimony and often such judgments may be based, at least inpart, on demeanor. It is because of that element of the IJ proceeding that the BIAmay not engage in full de novo review of an IJ’s fact-finding. In such matters, theBIA is confined to “clear error” review. Legal issues remain open for de novoreview.When the BIA reviews USCIS family-based visa petition denials, it is similarlysituated to AAO and retains full de novo review authority. The underlyingimmigration adjudication was a faceless, paper-based inquisitorial proceeding. Theevidence may be re-weighed under a different (i.e., correct) standard of proof orthe appellate reviewer(s) may substitute their own judgment for that of theadjudicator below.Application for a VisaThe DoS Consular Officers interview most applicants for a visa (both immigrantsand non-immigrants) at Embassies or Consulates abroad. They have greaterdiscretion to refuse to issue a visa and such decisions are generally unreviewable.As mentioned above, certain administrative checks and balances do exist in reality.Challenges to visa refusals are made all the time. The rates of success are unknownto this writer but I would hazard a guess that successful challenges are probably inthe minority.Application for AdmissionWhen an individual seeks to enter the United States, he or she must present themself to a CBP Inspector at a Port-of-Entry (POE). The inspector may readily grant Page 6 of 8
  7. 7. admission or might deny admission. Denials come in varying forms. Often, peopleare put back on the vessel that brought them to the U.S. and returned. Crewmembers might not be allowed to disembark (denied laning). They might beformally denied with entries made in databases to block them from coming backfor a set period. They might be allowed to “withdraw their application foradmission” with no negative consequences. They might be subjected to formal“expedited removal”. They might be formally removed through a reinstated priororder of removal. They could be deferred to secondary inspection, or referred for a“credible fear interview”, or referred to an Immigration Judge for an “asylum-only” proceedings, or it could be a formal Removal Proceeding. CBP might issuean NTA itself or turn the alien over to ICE for detention and further processing.When someone ends up before an IJ, they generally go through what was discussedabove, except for the “asylum-only” proceeding, which is less open to furtherreview.Other ProceedingsThe various other proceedings that enforce, administer or apply provisions underthe INA are less well know and affect fewer individuals. OCAHO hears caseslodged against employers who have violated certain INA provisions in the hiringprocess or who have hired unauthorized workers.Such “employer sanction” charges are usually preferred by ICE, sometimes withthe help of USCIS through E-Verify information. ICE may file charges with OSC(Office of Special Counsel for Unfair Immigration-Related Employment Practices)or employees and job applicants may contact OSC directly. OSC may file chargeswith OCAHO or decline to do so. Complaints might then be lodged directly toOCAHO when OSC declines.As was mentioned in a footnote, the Department of Labor (DOL) has a role to playin foreign labor employment-based cases. DOL has a multi-tiered appeals systemthat I will not even try to describe let alone explain. Suffice to say that certaindecisions are subject to requests for reconsideration and still others may beformally appealed. Some cases might proceed to judicial review. Page 7 of 8
  8. 8. ConclusionThe underlying approaches amongst the various agencies is diverse. The powersexercised are variable. It is no surprise that the options available as toreconsiderations, reopening, or appeal also vary. Certain challenges are quitelimited to an administrative path alone. Others have a long path before reaching acourt and a few have a fast path to judicial review. In short, it is complicated. Page 8 of 8

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