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Has the well run dry? NO it has not

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  • 1. Has the Well Run Dry? 2011 Seemed Like a Knowledge and GuidanceVacuum So Far With Minimal Postings to USCIS’ Administrative Decisionson www.uscis.gov BUT Change is in the Air in Other Matters at USCISI. Only TWO Administrative Decisions by AAO Posted In 2011A. An EB-5 DecisionAugust has just come to a close as this is written and to date only two AAO non-precedent Decisions have been posted thus far in 2011. An I-829 request by anentrepreneur to lift conditions from status denied and affirmed on certificationdated April 14, 2011, is the most recent administrative decision that has beenposted to the USCIS website, specifically found at: Apr142011_01B7203.pdf. It isa lengthy decision, weighing in at 20 pages, but the last page is only half filled andthe first is only a cover sheet, so it nets 18 ½ pages. It is well worth reading andprovides some very good information and a plethora of case citations. In addition,it clarifies current interpretations on some key EB-5 Regional Center Investorissues.Poor execution of a plan is not going to result in removal of conditions especiallywhen you hire an almost all “unauthorized alien” workforce. While CSC cannot gobehind an approved job multiplier without identifying and finding anyimpermissible material change or evidence of misrepresentation or concealment atan earlier stage, you simply cannot apply a job multiplier to illegal alien workers toarrive at “indirect job” totals!Lastly, AAO will make findings of material misrepresentation that will follow youinto future proceedings. Some misrepresentations can eventually be overcome by awaiver but we all know how that any waiver can be very difficult to get. Also, let’sface it, if these folks had another route to an immigrant visa, they probably wouldhave taken it in the first place. Consequently, an I-601 waiver is highly unlikely tocome into play for most of these folks any time soon, if ever. Page 1 of 11
  • 2. B. An Orphan Petition DecisionThe only other decision posted in 2011, is a non-Hague Orphan Petition denial (I-600 filed concurrently with an I-600A) found at: Jan032011_01F1101.pdf Thisone is shorter but still quite well written and informative. The 9 pages, minus thecoversheet and blank space, still weighs in at 7 2/3 pages, but it cites a large chunkof the law so the actual discussion only nets about 4 pages. Those few pages pack aheck of a punch.This case is representative of a large proportion of phony-baloney family and/orfriend “adoptions”. The child did not qualify as an orphan. The birthfather was a“professional” who was remarried, so even though the birthmother was deceased,the child also had a stepmother, i.e., no sole or surviving parent incapable ofproviding care. There was no evidence as to Pakistan’s standard of living or thefather’s lack of ability to provide support up to those standards, indeed, the fatheris loosely described employed as a “professional”. Additionally, the child wasplaced with the paternal grandfather (and who knows what other family memberare in the picture).There was no legal adoption available in Pakistan. However, even the lesser butlegally available and acceptable “guardianship” under Pakistani law was noteffectuated. Such a “guardianship” might result in an IR-4 (orphan to be adopted)visa in some cases. There is more to the discussion but I will leave that to thosewho are interested to follow the link. In short, “orphans” are strangers from anorphanage and not already known to the petitioner and most certainly not arelative.II. The Well Has Not Actually Run Dry at AAOAnother USCIS form I am quite interested in is the N-600, but there has beennothing new posted for a solid year (August 2010) and counting. I know that caseshave, in fact, moved forward and found a reference to at least one N-600 caseallegedly decided by AAO in 2011. In particular, Delice v. Holder et. al., Case2:11-cv-04258-CMR, was filed in the U.S. District Court for the Eastern District ofPennsylvania (Philadelphia) on 06/30/2011. Among the case information availablein PACER, reference is made to an AAO Dismissal supposedly dated May 25, Page 2 of 11
  • 3. 2011. It is mentioned in the Complaint as exhibit “U”. However in the list ofexhibits and the labeled document, “U” is actually a Passport Application. On theoff chance that it was a typo in the date, which seemed to be a strong possibilitybased on the other typos (or gross incompetence in repeatedly citing the wrongstatute involved as 28 USC rather than 8 USC and no, it was supposed to be areference to the INA and not to the Declaratory Judgments Act which is alsoinvolved), I looked for an N-600 Decision for May 25, 2010. The only possibilityfound was a case that had been rejected as having been filed by someone other thanan affected party without a G-28 who could not submit one when it was requested.From what I could figure out from the sloppy filing in PA, it is likely to bedismissed for lack of jurisdiction and/or as prematurely filed. Apparently, the issuecame up in Removal Proceedings. The removal proceedings could have beentemporarily administratively closed or terminated (without prejudice) but I thinkthat the District Court would still be without jurisdiction at this time unless it wastransferred from the 3rd Circuit Court of Appeals. The available information wassomewhat muddled on this point. This same jurisdictional issue has come upbefore. See Rios Valenzuela v. Department Of Homeland Security, 506 F.d 393,399 (5th Cir., 2007), in which the 5th Circuit upheld the District Court’s Dismissalfor lack of jurisdiction.III. Other Actions Have ContinuedA. Broad ChangesOn Monday August 29, 2011, DHS published a USCIS Final Rule, with request forcomments: “Immigration Benefits Business Transformation, Increment I”1 at 76FR 53764 and continues on for 43 pages. I certainly have not digested the rule100% yet but am glad to see movement by USCIS. It is clear to me that broadchanges are underway and I suspect that these broader changes have someinfluence on the lack of non-precedent AAO Decision postings. Also, AAO issupposedly working on a regulation regarding its own procedural reform efforts.One last item of note is the Special Immigrant Juvenile Petition Proposed Rule ofTuesday September 6, 2011, at 76 FR 54978 and goes on for 9 pages. Amazinglythere is absolutely no reference to the Settlement Agreement in Perez-Olano, et al.v. Holder, et al., Case No. CV 05-3604, in U.S. District Court for the Central1 Please comment at: http://www.regulations.gov/#!documentDetail;D=USCIS-2009-0022-0001 Page 3 of 11
  • 4. District of California. USCIS did previously address is responsibilities regardingMotions and did change the I-290B Instruction to include this settlement as anoption.B. Some Changed Naturalization-Related ProvisionsAs for regulatory changes in the Transformation Rule, some of my favorite petpeeves have been addressed. Numerous Title III benefit forms addressed inseparate “information collection requests” (ICRs) in addition to their associatedimplementing regulations have been updated. A variety of old obsolete regulationshave been dumped. You will no longer be able to file a Petition for an AmendedCertificate based on 8 CFR § 334.16(b). Will something eventually replace it? Thenewly proposed N-336 form instructions state that the hearing will be scheduledwithin 120 days as opposed to the 180 days as stated in the regulations. Perhapsthat timeframe in 8 CFR § 336.2(b) might change soon? It hasn’t yet. However, themere addition of some basic processing information is itself a major improvement.C. Citizenship ClaimsRegarding the N-600, please have a look at the proposed new version of 8 CFR §341.5. I still think something is missing. I feel that all N-600s need a decision onthe merits as intended by Congress as recognized at least by the 7th Circuit in thecase excerpted below. The clunky older version of the regulation at § 341.6provided: “...A decision shall be issued with notification of appeal rights in allCertificate of Citizenship cases, including any case denied due to the applicantsfailure to prosecute the application.” The proposed version at § 341.5(d) states:“If USCIS denies the application, the applicant will be furnished the reasons fordenial and advised of the right to appeal in accordance with 8 CFR 103.3.” What Idon’t like about that is that it does not differentiate a denial for “failure toprosecute” or rule out a Denial Due to Abandonment instead it simply says tofurnish the reasons for denial and advise of right to appeal. 8 CFR § 103.3(a)references denials under § 103.2 and § 103.2(b)(13) includes denials dueabandonment and (b)(15) divests such a denial of appeal rights. That leaves thedoor open for an undertrained adjudicator to issue an abandonment denial andadvise of the associated Motion to Reopen specifically geared to such a denial on a Page 4 of 11
  • 5. form M-188 enumerating the limited avenues available under 8 CFR 103.5(a)(2).That would be a trivialization of the right to claim one’s United States Citizenship.If this is not corrected it could could lead to erroneous “rejections” on nonsensicaltrivial procedural grounds. Oh, but wait! Both of those scenarios have alreadyhappened. These regulatory changes do not go far enough to prevent a recurrenceof those dreadful mistakes.8 CFR § 103.5(a)(2) addresses motion requirements and includes motions inresponse to a denial due to abandonment. In addition, as we all should be aware bynow, there are further rights to pursue a citizenship claim after the dismissal byAAO via INA § 360(a) [8 USC § 1503(a)] and the Declaratory Judgments Act in aU.S. District Court. Alternatively, when one is asserting a citizenship claim inRemoval Proceedings they will have an avenue to pursue that claim in a CircuitCourt of Appeals via INA § 242(b)(5) [8 USC 1252(b)(5)].Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010)2 provides: “There certainly is nothing in the language of the statute or in the legislative history of [8 USC] § 1503(a) that would justify the conclusion that Congress meant to leave an individual, with more than a colorable claim of nationality, in legal limbo--able to remain in this Country, but without any means of establishing her nationality. Congresss solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congresss concern that individuals be able to settle, definitively, the issue of citizenship. Indeed, it would be disrespectful to impute to Congress a desire to leave someone in Ms. Ortegas situation permanently out in the cold.” [Emphases added.] ***** “The citizenship claim that Ms. Ortega pursued in her original application for a certificate of citizenship arose as a result of or in connection with her removal proceedings. Thus, § 1503(a)(1) prevents her from challenging the administrative denial of that application by way of a declaratory2 Found at: http://caselaw.findlaw.com/us-7th-circuit/1497479.html orhttp://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdjb&searchTerm=hYKL.gLja.ZCaW.LabT&searchFlag=y&l1loc=FCLOW Page 5 of 11
  • 6. judgment action. Instead, Ms. Ortega was required to re-file herapplication as a motion to reopen or a motion to reconsider; 2  this action, inessence, would have separated her administrative action from her priorremoval proceedings and eliminated the jurisdictional bar to any court actioncreated by way of § 1503(a)(1). On further review of Ms. Ortegas administrative file, however, we haveascertained that Ms. Ortega in fact has accomplished this necessary step.As we have discussed in some detail, 8 C.F.R. § 341.6 requires that anysubsequent application for citizenship be filed as a motion to reconsider or toreopen. In this case, Ms. Ortega did file a motion to reconsider or toreopen after the AAO denied her appeal and after her removal proceedingshad been terminated. Indeed, her motion for reopening or reconsiderationexplicitly alerted the AAO to the fact that removal proceedings had beenterminated in her favor. The filing of this motion, by the Governmentsconcession and consistent with the Fifth Circuits decision in Rios-Valenzuela, removed the “albatross” of the prior removal proceedings fromMs. Ortegas neck and took her outside of the exception set forth in §1503(a)(1).Because Ms. Ortegas motion to reopen or reconsider is, by theGovernments own regulation, the correct substitute for a second applicationfor a certificate of citizenship, Ms. Ortegas motion satisfied theGovernments requirement that she reinstitute an administrative action afterthe termination of removal proceedings. Having done so, and having beendenied administrative relief, there is no longer a jurisdictional impediment toher instituting a declaratory judgment action under § 1503(a) because theaction that she is challenging is not tainted by its connection to removalproceedings.ConclusionFor the foregoing reasons, the judgment of the district court dismissing Ms.Ortegas complaint for lack of subject matter jurisdiction is reversed, and thecase is remanded for further proceedings.Reversed and Remanded Page 6 of 11
  • 7. [7th Circuit’s] FOOTNOTES 1. Given this authority, the AAOs determination that Ms. Ortegas motion is “at best” a motion to reconsider is problematic. R.14, Ex. C at 2. According to the Governments own submission, whether an individual is in removal proceedings at the time she files a N-600 application is a jurisdictional fact for purposes of 8 U.S.C. § 1503, that is, the termination of proceedings is a fact bearing on the applicants eligibility for ultimate relief in the district court. It follows, therefore, that the applicants effort to bring this fact to the agencys attention should be characterized as a motion to reopen-the mechanism by which an individual brings new facts before the agency-as opposed to a motion to reconsider, which is focused on errors of law. 2. See 8 C.F.R. § 341.6 (“After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5.”).” [Emphasis added.]It must be remembered that a true “Denial Due to Abandonment” has NO APPEALRIGHTS but ALL Certificate of Citizenship cases should have appeal rights soabandonment denials should NEVER be issued. The regulations that existed priorto those in the newly announced Final Rule were promulgated via 50 FR 39649 onSept. 30, 1985, which included the following: “SUMMARY: The final rule clarifies and affirms the requirement that a decision be issued and the applicant be notified in all cases involving an application for a Certificate of Citizenship, and specifically includes cases which are closed administratively. Additionally, minor technical amendments, including removing sexist language, are made. EFFECTIVE DATE: September 30, 1985. ***** SUPPLEMENTARY INFORMATION: Presently, 8 CFR 341.6 does not address cases which are closed administratively. Therefore, in order to Page 7 of 11
  • 8. ensure that a decision is issued in all cases, including those which are closed administratively, the regulation is being revised . ...”D. Broadly and Generally Applicable Eligibility Considerations1.) Specifically on page 53770, USCIS states, in pertinent part: “Section 103.2(b)(1) is revised to update terminology and to clarify that every applicant or petitioner must remain eligible for the benefit request at the time of adjudication and that every benefit request must be submitted with all prescribed supporting documentation. USCIS longstanding policy and practice, as well as a basic tenet of administrative law, is that the decision in a particular case is based on the administrative record that exists at the time the decision is rendered. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1972). Thus, the granting of any benefit request by DHS is not based solely on what is provided at the time of the initial request and is contingent on the fact that circumstances will not change during the processing of a benefit request in such a way so as to render the applicant ineligible. This change will reduce any confusion that may exist for those who believe that eligibility is based solely on what is provided at the time of the initial request and instead will clarify that eligibility is subject to change if circumstances change while processing occurs. This clarification may be especially important in the transformed electronic environment. This revision is not a substantive change in eligibility criteria and is thus appropriate for this final rule...” [Emphasis added.]2.) The prior version had something in it that just did not sound right. It ishighlighted below. (b) Evidence and processing —(1) Demonstrating eligibility at time of filing. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the forms instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition. Page 8 of 11
  • 9. 3.) eligibility at time of filing This was a codification of the principle espoused inMatter of Katigbak, I&N Dec. 45, 49 (Regl. Commr. 1971) and carried over intoother inapplicable contexts in other Precedent Decisions. It is perfectly correct andappropriate within the right context but not in absolutely every adjudicativecontext found within the provisions of the INA. The “time of adjudication” or“time of making the full required evidentiary showing” or in other words, “uponproof to the satisfaction of the deciding official” whether for the initial decision or,on motion or, upon appellate review; are all viable alternate contexts in which todetermine and decide eligibility based on the statutory requirements involved.4.) As a specific example of a different context, INA § 341(a) states in part: “... Upon proof to the satisfaction of the Attorney General that the applicant is a citizen, and that the applicants alleged citizenship was derived as claimed, or acquired, as the case may be, and upon taking and subscribing before a member of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, such individual shall be furnished by the Attorney General with a certificate of citizenship, but only if such individual is at the time within the United States.” [The Attorney General has been replaced by the Secretary of Homeland Security and this adjudication has been delegated to USCIS.]The condition precedent under the above INA provision is a satisfactoryevidentiary showing, i.e., upon proof to the satisfaction of. Any attempt to bar thepursuit on a rightful claim through the improper and nonsensical application of aninapplicable regulatory scheme will not stand up to judicial review as evidenced bythe finding in Ortega, supra.5.) Per the proposed change, published Aug. 29, 2011, 8 CFR § 103.2 now reads: “(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS Page 9 of 11
  • 10. instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.”6.) To me, something is still not quite right with 8 CFR § 103.2.eligible for the requested benefit at the time of filing The same overstatedrequirement is still there. It needs additional qualification and softening in order toconform to the case cited in the supplementary information published with theregulatory change. The change is not effective yet and could and use furtheradjustment after further consideration.and must continue to be eligible through adjudication. This seems to be at least apartial back-handed codification of a principle further expanded in Matter ofIzummi, 22 I&N Dec. 169 (BIA 19983) which held, in pertinent part: (3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.The new regulatory language could be misconstrued as stated because it does notfully conform to sentiments expressed in the statements in the supplementaryinformation, specifically: “the granting of any benefit request by DHS is not based solely on what is provided at the time of the initial request and is contingent on the fact that circumstances will not change during the processing of a benefit request in such a way so as to render the applicant ineligible.” ***** “This change will reduce any confusion that may exist for those who believe that eligibility is based solely on what is provided at the time of the initial request and instead will clarify that eligibility is subject to change if circumstances change while processing occurs.”The concept expressed in the supplementary information that “the decision in aparticular case is based on the administrative record that exists at the time thedecision is rendered” finds further support in Matter of Pazandeh, 19 I&N Dec.884 (BIA 1989). Pazandeh involved a spousal visa petition that seemed to besubject to a presumption that would have to be overcome. However, the need to3 http://www.justice.gov/eoir/vll/intdec/vol22/3360.pdf Page 10 of 11
  • 11. overcome it “lapsed with the passage of time” and became irrelevant to the caseat the time of adjudication. The BIA found at the time of its decision that the pointat issue was then moot and did not determine if that earlier presumption had beenovercome because there was no longer a need to decide that question. An alternatepossibility became an affirmative avenue then available and trumped thepresumption. The new regulation is lacking as it does not fully embrace thisconcept. The AAO should follow the same reasoning expressed by, and the courseof action taken by, the BIA in that case whenever applicable. After all, AAO mayreview everything de novo anyway even when it has absolutely no reason to do so.E. Some Alternate Possibilities to Consider (b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is [or was legally] eligible [to file] for the requested benefit at the time of filing the benefit request and must [not lose eligibility] [by the time of final] adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request. -OR- (b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must [ultimately] establish that he or she is [or was] eligible for the requested benefit [both,] at the time of filing the benefit request and [at the time of final] adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request. -OR- (b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must [ultimately] establish that he or she is [or was] eligible [to file] for the requested benefit at the time of filing the benefit request and[;] [not become ineligible by the time of final] adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request. Page 11 of 11

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