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  • 1. Administrative Appellate Powers and Limitations By Joseph P. Whalen (February 26, 2012)I have previously written about some of the differences between the Judicial andAdministrative appellate review standards, approaches, and powers1. Now, I’d liketo expound a little bit on the Administrative Appellate bodies within theImmigration context. This essay will focus primarily on the U.S. Citizenship andImmigration Services’ (USCIS’) Administrative Appeals Office (AAO) and less soon the Board of Immigration Appeals (BIA). However, there really are even more“players” that could be involved who should not be completely ignored if relevantto a particular case at hand. Be aware of them even though they are notmeaningfully addressed herein.In addition to the aforementioned BIA, the Department of Justice (DOJ) alsocontains the Office of the Chief Immigration Judge (OCIJ) [Immigration CourtSystem] and Office of the Chief Administrative Hearing Officer (OCAHO) withinthe same Executive Office for Immigration Review (EOIR). DOJ also contains theOffice of Special Counsel for Unfair Immigration-Related Employment Practices(OSC), which along with Immigration and Customs Enforcement (ICE) andpossibly USCIS, may prefer charges or refer cases to OCAHO. Additionally, theDepartment of Labor (DOL) has five appellate bodies and at least two of them dealwith decisions under the INA. Those decisions are found within DOL’sImmigration Collection: Board of Alien Labor Certification Appeals (BALCA) andOffice of Administrative Law Judges (OALJ) and available online. See ICE’s sister agency in Immigration andCustoms enforcement matters, Customs and Border Protection (CBP) has postedthe following information about its many decisions at: includes the Customs Rulings Online Search System (CROSS) which arereally more of a Customs nature.The United States government has gone through many reorganizations of varyingsizes over its entire history. Immigration and Naturalization as a focus has beenprominent from the very beginning, starting with the Constitution itself. In oneparticular reorganization in 1983, the Attorney General extracted the BIA andImmigration Courts from the Immigration and Naturalization Service (INS) andplaced them in a new agency called EOIR. At the same time, certain classes ofcases which involved mostly “benefits” were intentionally kept within INS forappeals in a newly christened Administrative Appeals Unit (AAU) exercising the1 1 See: Administrative VS. Judicial Remedial Powers And Relief Options at:,1206-whalen.shtm Page 1 of 17
  • 2. authority of the Associate Commissioner for Examinations which had previouslybeen somewhat scattered among the Commissioner and various RegionalCommissioners as well as Port and District Directors etc.... In 1994, AAU becameAAO. So, as distinct entities, AAO and BIA have been diverging since at least1983, a significant difference was noticed and addressed in 1994. In 1995, INSbegan a process to provide distinct regulations between its two Appellate Bodies.The BIA rulemaking did proceed and eventually after much back and forth throughthe notice-and-comment process became finalized in 2002. Meanwhile, AAO’srulemaking languished and then the terrorist attacks of September 11, 2001, shovedit to the sidelines (and rightly so). However, after the creation of the Department ofHomeland Security (DHS), with AAO landing in USCIS within DHS, thedivergence from the BIA became even more apparent. Unfortunately, thatrulemaking for AAO did not proceed, it was withdrawn in 2007. (The formerDirector of the AAO was instrumental but quite suddenly and sadly passed away.)Currently, AAO Rulemaking is back on the DHS-USCIS Agenda. Over the years,AAO has adopted some parameters and practices for its review operations. Whilenot spelled out in an easily located set of regulations (yet), some interesting blurbscan be found within its non-precedent decisions that are posted online that may aidone in understanding how AAO actually operates.Sample language2 and discussions from various precedent and non-precedentadministrative and judicial opinions are presented below. “The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.FN1” ***** FN1: “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 documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988).” [This same blurb is frequently used by AAO.] “On appeal, counsel generally challenges the propriety of the denial, relying on the lack of request for evidence (RFE) as a basis for the challenge. Counsel cites an internal U.S. Citizenship and Immigration Services (USCIS) memorandum in support of his argument. The AAO notes, however, that 8 C.F.R. 5 103.2(b)(8) was revised, effective June 18, 2007, and no longer requires that the director issue either an RFE or a notice of intent to deny (NOID) under any circumstances. Under the revised provisions the director has absolute discretionary authority to determine the need for an RFE or NOID, thus allowing2 The blurbs shown here are often reused in AAO Decisions and contain repeatedly used case cites. Page 2 of 17
  • 3. the director to issue an adverse decision without issuing any prior notices at all. The AAO further points out that the appeal process itself affords the petitioner ample opportunity to submit supplemental evidence and/or information in an effort to establish eligibility. Therefore, the director committed no procedural error by not issuing an RFE or NOID prior to denying the petitioners Form 1-140.” “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, 229 F. Supp. 2d 1025, 1043 (ED. Cal. 2001), aff’d, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the two additional grounds of ineligibility discussed above, this petition cannot be approved.”3 “Third, counsel contends that the regulatory definition of abandonment, which precludes the transfer of a child to a specific person, is contrary to the Act. However, the AAO lacks jurisdiction to pass on the validity of the regulations administered by USCIS. See, e.g., Matter of Hernandez-Puente, 20 I. & N. Dec. 335, 339 (BIA 1991) (stating that "it is not within the province of [the BIA] to pass on the validity of the statutes and regulations" it administers); United States v. Nixon, 418 U.S. 683, 695-96 (1974) (holding that government officials are bound to adhere to the governing statute and regulations).”4Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991) (1) The Board of Immigration Appeals and the immigration judges are without authority to apply the doctrine of equitable estoppel against the Immigration and Naturalization Service so as to preclude it from undertaking a lawful course of action that it is empowered to pursue by statute and regulation. (2) The Service has no authority to grant an application for adjustment of status nunc pro tunc under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1988). (3) As the Board has no jurisdiction, according to 8 C.F.R. § 245.2(a)(5) (1991), to review a district directors decision to deny adjustment of status, it follows that the Board also lacks jurisdiction to review or remedy a failure of the Service to act on the application.3 From a non-precedent at: Sep302010_01B4203.pdf4 From a non-precedent at: Apr052011_03F1101.pdf or Page 3 of 17
  • 4. N-600 Standard of Review for the Initial Decision and before the AAO as repeatedly stated in numerous AAO non-precedents.Claim to USC At Birth Abroad: “The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the childs birth.” Chau v. Immigration and Naturalization Service, 247 F.3d 1026, 1029 (9th Cir. 2000) (citations omitted).Derivative Citizenship Claim through Parents’ Naturalization: “The applicable law for derivative citizenship purposes is "the law in effect at the time the critical events giving rise to eligibility occurred." Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005); accord Jordon v. Attorney General, 424 F.3d 320, 328 (3rd Cir. 2005).”Evidentiary Burden and Burden of Proof: "There must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko v. United States, 449 U.S. 490, 506 (1981). 8 C.F.R. § 341.2(c) provides that the burden of proof shall be on the claimant to establish the claimed citizenship by a preponderance of the evidence. In order to meet this burden, the applicant must submit relevant, probative and credible evidence to establish that the claim is "probably true" or "more likely than not." Matter of E-M-, 20 I&N Dec. 77, 79- 80 (Comm. 1989). A person may only obtain citizenship in strict compliance with the statutory requirements imposed by Congress. INS v. Pangilinan, 486 U.S. 875, 884 (1988). Moreover, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect" and that any doubts concerning citizenship are to be resolved in favor of the United States. Berenyi v. District Director, INS, 385 U. S. 630, 637 (1 967). The applicant must meet this burden by establishing the claimed citizenship by a preponderance of the evidence. 8 C.F.R. § 341.2(c).Evidentiary Standard and Burden of Proof “The petitioner asserts his eligibility under the "any credible evidence" standard on motion to reconsider. However, he appears to have conflated the evidentiary standard set forth by section 204(a)(1)(J) of the Act with his burden of proof. Section 204(a)(1)(J) of Page 4 of 17
  • 5. the Act requires U.S. Citizenship and Immigration Services (USCIS) to "consider any credible evidence relevant to the petition." Id. This mandate is reiterated in the regulation at 8 C.F.R. § 204.2(c)(2)(i). However, this mandate establishes an evidentiary standard, not a burden of proof. Accordingly, "[t]he determination of what evidence is credible and the weight to be given that evidence shall be within the [agencys] sole discretion." Section 204(a)(1)(J) of the Act, 8 U.S.C. § 1154(a)(1)(J); 8 C.F.R. § 204.2( c )(2)(i). In this case, as in all visa petition proceedings, the petitioner bears the burden of proof to establish his eligibility by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). The mere submission of relevant evidence of the types listed in the regulation at 8 C.F.R. § 204.2(c)(2) will not necessarily satisfy the petitioners burden of proof.”5Individual Officers and Employees Cannot Give Appeal Rights Where NoneExist “When the director denied the petition on October 10, 2008, the director provided instructions on how to appeal the decision to the AAO. This language was included in error, because the regulations in effect at that time contained no provision to allow the petitioner to appeal the denial of an R-1 nonimmigrant visa petition. The directors erroneous inclusion of appeal instructions in the denial notice does not supersede the regulations or give the AAO the authority to accept R-1 appeals filed at that time. The regulation is binding on U.S. Citizenship and Immigration Services (USCIS) employees in their administration of the Act, and USCIS employees do not have the authority to allow for appeal rights where none exist. See, e.g., Panhandle Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 1 120 (C.A.D.C., 1979) (an agency is bound by its own regulations); Reuters Ltd. v. F.C. C., 78 1 F.2d 946, (C.A.D.C.,1986) (an agency must adhere to its own rules and regulations; ad hoc departures from those rules, even to achieve laudable aims, cannot be sanctioned). An agency is not entitled to deference if it fails to follow its own regulations. U.S. v. Heffner, 420 F.2d 809, (C.A. Md. 1969) (government agency must scrupulously observe rules or procedures which it has established and when it fails to do so its action cannot stand and courts will strike it down); Morton v. Ruiz, 415 U.S. 199 (1974) (where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures).”6An Administrative Appellate Body’s Authorities Have Been Likened To Those Of A Circuit Court Of Appeals Over A District Court “Furthermore, the AAOs authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director incorrectly advised the petitioner that it had appeal rights, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff’d, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S. Ct. 51 (2001).”5 From: Aug022011_02B9204.pdf6 From: Jan062009_01D13101.pdf Page 5 of 17
  • 6. On the Basic General Standard of Proof & An ExceptionMatter of Chawathe, 25 I&N Dec. 369 (AAO 2010) held, in pertinent part: (3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.7 (4) Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989), followed. (5) If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition.Footnote in Chawathe: FN7: The standard of proof should not be confused with the burden of proof. The burden of proving eligibility for the benefit sought remains entirely with the applicant. Section 316(b)(2) of the Act; see also section 291 of the Act, 8 U.S.C. § 1361 (2006). Additionally, the “preponderance of the evidence” standard does not relieve the petitioner or applicant from satisfying the basic evidentiary requirements set by regulation. There are no regulations relating to a corporation’s eligibility as an “American firm or corporation” under section 316(b) of the Act. Had the regulations required specific evidence, the applicant would have been required to submit that evidence. Cf. 8 C.F.R. § 204.5(h)(3) (2006) (requiring that specific objective evidence be submitted to demonstrate eligibility as an alien of extraordinary ability). [Bold added.] On What Does NOT Constitute Evidence “Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).”87 Although not footnoted in the Precedent Decision, for the source of that see U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “morelikely than not” as a greater than 50 percent probability of something occurring).8 Page 6 of 17
  • 7. Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994).Specific Requirements Pulled From Various Non-Precedent AAO Decisions Because the applicant was born abroad, she is presumed to be an alien and bears the burden of establishing her claim to U.S. citizenship by a preponderance of credible evidence. See Matter of Baires-Larios, 24 I&N Dec. 467, 468 (BIA 2008). Section 309(c) of the Act, 8 U.S.C. § 1409(c), requires that the applicant establish that he was born out of wedlock to a U.S. citizen mother who had been physically present in the United States for a continuous period of one year. “Both the director and counsel erred by applying the so-called "Fleuti doctrine" to evaluate whether the applicants departures were interruptive of his physical presence in the United States. As noted above, the field office director and counsel relied on a 1963 Supreme Court decision, Rosenberg v. Fleuti, 374 U.S. at 449, in addressing whether the applicants numerous trips abroad were "meaningfully interruptive" or "significant." The AAO notes that the Fleuti decision, and the doctrine of "brief, casual, and innocent" departures, was nullified by the enactment of section 301(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009- 546, 3009-575 ("IIRIRA"). The Fleuti doctrine, with its origins in the no longer existent statutory definition of "entry," did not survive as a judicial doctrine beyond the enactment of IIRIRA. Matter of Collado, 21 I&N Dec. 1061, 1065 (BIA 1998). Accordingly, the director erred when he weighed whether the applicants absences were meaningful and significant.”9 “The term "legal separation" in the context of derivative citizenship means either a limited or absolute divorce obtained through judicial proceedings. Matter of H, 3 I&N Dec. 742, 743-44 (Cent. Office 1949). See Morgan v. Attorney General, 432 F.3d 226, 233 (3d Cir. 2005) (finding no legal separation absent a judicial decree); Nehme v. INS, 252 F.3d 415,426 (5th Cir. 2001) (finding that "in the United States, the term ‘legal separation’ is uniformly understood to mean judicial separation") (emphasis in original).”109An N-470 Decision at: See: May182010_03E2309.pdf Page 7 of 17
  • 8. “Legal custody vests by virtue of "either a natural right or a court decree". See Matter of Harris, 15 I&N Dec. 39, 41 (BIA 1970). The applicants parents divorce document does not address the issue of the applicants custody. In the absence of a judicial determination or grant of custody in a case of a legal separation of the naturalized parent, the parent having actual, uncontested custody of the child is to be regarded as having "legal custody." See Matter of M, 3 I&N Dec. 850,856 (BIA 1950). The record indicates that the applicant immigrated to the United States to reside with her father. The Board of Immigration Appeals (Board) has held that "[u]nless there is evidence to show that the father of a legitimated child has been deprived of his natural right to custody, he will be presumed to share custody with the mother." Matter of Rivers, 17 I&N Dec. 419, 422-23 (BIA 1980) (stating the presumption "that the father has not been divested of his natural right to equal custody in the absence of affirmative evidence indicating otherwise."). Here, there is no evidence that the applicants father was deprived of his custody of the applicant after she immigrated to the United States. The AAO therefore finds that the applicants father had actual, uncontested custody of the applicant following the applicants parents divorce. The applicant therefore has fulfilled the conditions for derivative citizenship required in former section 321 (a)(3) of the Act.”11 “The legislative history of INA § 321 indicates that “Congress enacted the provision to ensure that only those alien children whose real interests were located in America with their custodial parent, and not abroad, should be automatically naturalized.” Bustamante-Barrera v. Gonzales, 447 F.3d 388, 397 (5th Cir. 2006), cert. denied, 547 U.S. 1205 (2006); see also H.R. Rep. No. 82-1365, reprinted in 1952 U.S.C.C.A.N. 1653, 1680. In Bustamante-Barrera, the Fifth Circuit construed the section of § 321(a)(3) that stated “the naturalization of the parent having legal custody when there has been a legal separation of the parents ...” as requiring the naturalizing parent to have sole as opposed to joint legal custody. Bustamante-Barrera, 447 F.3d at 396. The Bustamante-Barrera court further reasoned that Congress chose to use the singular form, “parent,” to describe the person having custody, which “leaves no room to dispute that, when only one of the two legally separated parents is a naturalized U.S. citizen, that parent is the one who must have legal custody.” Id. Thus, a petitioner who was in the sole physical custody of his mother, but subject to joint legal custody of both parents under the divorce decree, did not derive citizenship at the time of his mother’s naturalization under INA § 321. Id. at 398-99. The dispute in the instant case centers around the requirement of INA § 321 that the naturalized parent must have legal custody of the child seeking derivative citizenship. Petitioner is unable to establish that he was in the legal custody of his father, who was the only parent who was naturalized prior to Garcia’s eighteenth birthday. The Dominican11 Page 8 of 17
  • 9. divorce decree submitted to the Immigration Court provides that personal guardianship of Garcia was granted to his mother. See Divorce Certificate Extract at Ex. F. That decree does not provide that petitioner’s father had joint or sole custody of the five minor children (including petitioner) listed on the divorce decree. According to the decree, the only judicial determination made with respect to petitioner is that guardianship was granted to his mother, but there is no provision that his father assumed any rights or responsibilities regarding care and custody of the children. It is apparent from the record that Garcia was in the custody of his mother after the divorce.”12 “The AAO may, in its discretion, use as advisory opinion statements submitted as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, the AAO is not required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 79 1 (Comm. 1 988).”13 “Neither the statute nor regulations allow for the acceptance of a labor certification obtained subsequent to the filing of the petition. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).” 14 Powers Beyond AAO’s Authority “The AAO, like the Board of Immigration Appeals, is without authority to apply the doctrine of equitable estoppel so as to preclude a component part of USCIS from undertaking a lawful course of action that it is empowered to pursue by statute or regulation. See Matter of Hernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). Res judicata and estoppel are equitable forms of relief that are available only through the courts. The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretary of the United States Department of Homeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. § 103.1 (f)(3)(E)(iii) (as in effect on February 28, 2003) [and subsequent amendments, this includes N-600’s]. Accordingly, the AAO has no authority to address the petitioners equitable estoppel and res judicata claims.”1512 Garcia v. Heron, No. 09-CV-416, 2009 WL 3231924 (W.D.N.Y. Oct. 1, 2009) This same blurb is in multiple decisions.14 A non-precedent AAO Administrative Decision pertaining to an I-140, Immigrant Petition for Alien Worker, as a Member of the ProfessionsHolding an advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C.§1153(b)(2). See: Apr282009_01B5203.pdf on Page 9 of 17
  • 10. “Even if the applicants assertions regarding the delays in his fathers naturalization and his own application were true, the AAO is without authority to apply the doctrine of equitable estoppel to approve an application for derivative citizenship nunc pro tunc.”16 “Although the applicant requests an exemption from the one-year bar, the AAO lacks authority to contravene the express language of the applicable regulations. See, e.g., United States v. Nixon, 418 U.S. 683, 695-96 (1974) (holding that government officials are bound to adhere to the governing statute and regulations).”17Powers Beyond BIA & AAO (and any administrative appellate body’s) AuthorityThe BIA still finds that it lacks jurisdiction to consider broad constitutionalityissues18 when an alien challenges a statute. On the other hand, it can and doesanalyze the due process issues created and/or addressed by regulations thatinterpret statutes as well as policy statements as to how the statutes and regulationswill be applied to cases. The AAO also has a role to play in these considerationsbut has not issued many actual precedents on topic or much of anything else.For instance, Matter of Cruz De Ortiz, 25 I&N Dec. 601 (BIA 2011), includes: “It is clear that neither we nor the Immigration Judges have authority to rule on the constitutionality of the statutes we administer. See Matter of D-R-, 25 I&N Dec. 445, 456 (BIA 2011); Matter of Gonzalez-Camarillo, 21 I&N Dec. 937, 940-42 (BIA 1997) (holding that we would not address the respondent’s equal protection argument because we lack jurisdiction to consider the constitutionality of the Act); Matter of Cenatice, 16 I&N Dec. 162, 166 (BIA 1977).”The BIA further explained in Matter of Figueroa, 25 I&N Dec. 596 (BIA 2011): “When interpreting statutes and regulations, we look first to the plain meaning of the language and are required to give effect to unambiguously expressed intent. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)19; Matter of F-P-R-, 24 I&N Dec. 681, 683 (BIA 2008). Executive intent is presumed to be expressed by the ordinary meaning of the words used. Matter of F-P- R-, 24 I&N Dec. at 683; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). We also construe a statute or regulation to give effect to all of its provisions. Matter of E- L-H-, 23 I&N Dec. 814, 823 (BIA 2005); Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA 1999).”16 From the most recent non-precedent AAO Decision on an N-600 at: May192010_01E2309.pdf at www.uscis.gov17 From a non-precedent AAO Decisions at on an Orphan Petition at: Apr182011_01F1101.pdf18 This factoid makes the AG’s remand in Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011) mind boggling because it was remanded to considerthe constitutionality of DOMA!19 A certain amount of deference is required by statute via 6 USC § 522. Page 10 of 17
  • 11. 6 USC § 522. Statutory construction Nothing in this chapter, any amendment made by this chapter, or in section 1103 of title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General. (Pub. L. 107-296, title XI, Sec. 1103, Nov. 25, 2002, 116 Stat. 2274.) On Properly Implementing ChangesUSCIS has learned from past mistakes and is being proactive in its clarity onimplementing changes at least with regard to certain procedural points. Suchclarity meets and defeats the anticipated future challenges on such nonsensicalissues that have been problematic in the past and would most certainly be triedagain if not plainly blocked from the start. But there still may be problems.Cases that illustrate this point relate to the religious worker rule of November 26,2008. AAO stated one approach but later backed away and changed its stance.Initially, AAO took the stance that a Pending Appeal or Motion when newregulations were filed is also subject to the new regulations because the underlyingdecision was not final. “As required under section 2(b)(l) of the Special Immigrant Nonminister Religious Worker Program Act, Pub. L. No. 110-391, 122 Stat. 4193 (2008), U.S. Citizenship and Immigration Services (USCIS) promulgated a rule setting forth new regulations for special immigrant religious worker petitions. Supplementary information published with the new rule specified: "All cases pending on the rules effective date . . . will be adjudicated under the standards of this rule. If documentation is required under this rule that was not required before, the petition will not be denied. Instead the petitioner will be allowed a reasonable period of time to provide the required evidence or information." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). Section 557(b) of the Administrative Procedure Act (APA), 5 U.S.C. § 557(b), provides that an initial agency decision is not final if "there is an appeal to, or review on motion of, the agency within time provided by rule." As this case was pending on appeal when the regulation went into effect, it is therefore subject to the new rule.” 2020 From a non-precedent AAO Decisions on a Special Immigrant Religious Worker Petition at: Jan132010_02C1101.pdf. Page 11 of 17
  • 12. The reversal came more recently: “Furthermore, in its 2008 remand notice, the AAO stated that the petition was subject to revised regulations published on November 26, 2008. This decision was in keeping with supplementary information published with the revised regulations, which specified: "All cases pending on the rules effective date ... will be adjudicated under the standards of this rule." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). Upon further consideration and consultation with other USCIS components, however, the AAO has concluded that a petition approved before November 26, 2008 was not "pending" on that date, even though USCIS subsequently revoked the approval and the appeal was pending on November 26, 2008. Therefore, the proper course of action at this point is for the CSC director to issue a new decision under the pre-2008 regulations. If that decision will be adverse to the petitioner, then the decision must take the form of a revocation rather than a denial, and must conform to the USCIS regulations governing revocations on notice at 8 C.F.R. § 205.2.”21One might conclude that AAO in consultation with others (perhaps OCC?) mighthave reassessed the phrase “within time provided by rule” as stated in 5 USC §557(b) or has merely distinguished cases that could be characterized as in theprocess of revocation or in mid-revocation. Those are at least possibilities thatjump off the page at me, but it is just a guess.AAO has danced around so as to avoid the issue but in reality, USCIS could becharged with making a mistake in the Religious Worker Rule when it strayed fromPrecedent. This could be argued because in connection with a change relating to anearlier incarnation of the immigrant investor labor certification exemptionclassification, the issue of setting Policy as to the Intent for the implementation of achange in a regulation was handled in a different manner. See Matter of Ko, as setout below.Matter of Ko, 14 I&N Dec. 349 (Dep. Assoc Comm’r 1973)22, held, in pertinentpart: (3) A request for a labor certification exemption as an investor filed prior to February 12, 1973, the effective date of the amendment of 8 CFR 212.8(b)(4) (38 F.R. 1379), may be decided under either the regulation as amended on that date or as it existed prior thereto, whichever is more favorable to the alien.Initially decided on May 9, 1973, the District Director CERTIFIED his DENIALto the Regional Commissioner who AFFIRMED and CERTIFIED it further to theDeputy Associate Commissioner, Travel Control who REVERSED the decision21 From a non-precedent AAO Decisions on a Special Immigrant Religious Worker Petition at: Jul212011_01C1101.pdf22 From an OLD (pre-EB-5) Immigrant Investor case at: Page 12 of 17
  • 13. and REMANDED the adjustment application for this Investor, to be reconsideredand decided “in conformity with this opinion” [in other words, approve it already!].That particular application was filed prior to a change in the regulation andremained pending on the effective date of the revision.A newer version of 8 CFR 212.8(b)(4) was promulgated at 38 FR 1379 on January12, 1973 and became effective on February 12, 1973. The new version made thepreviously undefined “substantial amount of capital” that he “has invested” or is“actively in the process of investing” to be a minimum of $10,000.00 and added arequirement for the investor to have at least one year of experience or training inthe commercial or agricultural “enterprise” in which he would “engage”.The Deputy Associate Commissioner held, and set the policy, that this case andany similarly situated (pending on effective date) could be decided under eitherthe previous or current regulation, whichever is more favorable to the alieninvestor. The respondent had previously run a retail grocery store and opened ashoe store in the U.S. with the proceeds from the sale of that grocery store back inArgentina [$18,000.00]. The lower decisions disallowed the “experience” but theappellate decision said it was similar enough as an “entrepreneur or manager”regardless of the lack of an exact match in the businesses, i.e. it was still an owner-operated “retail store” with additional employees beyond the investor alone.In recent cases arising in the Removal Context, Circuit Courts of Appeals havebeen remanding more and more cases to the BIA for proper explanations of theirrationale, and justifications for, straying from earlier Precedents. In hindsight,USCIS can point to the discussions in the NPRM and Final Rule for support for notsticking to earlier Policy as set by Precedent but it was not proactive in justifyingthe (inadvertent?) change when the rule was being written.On January 6, 2012, the D.C. Circuit Court of Appeals decided Republic Airlinesv. U.S. Dep’t of Transportation, No. 11-101823, which determined, in part, that: “Because DOT has departed from its precedent without adequate explanation, its decision cannot survive arbitrary and capricious review. Accordingly, we grant Republic’s petition for review and vacate DOT’s order.”23 Find it at: Page 13 of 17
  • 14. Because the agency departed from its own precedent without adequate explanation,this was found to be arbitrary and capricious, thus could not survive a challenge.This is readily applicable across agencies. On Jurisdiction The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretary of the United States Department of Homeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003). Delegations that pertain to the Secretary‘s powers under the INA are covered at least in part by 8 CFR Part 100, but gaps remain to be filled. FOIA submitted 3/14/11. The AAO exercises appellate jurisdiction over the matters described in 8 CFR § 103.1(f)(3)(iii) (as in effect on February 28, 2003), with two exceptions: (1) petitions for approval of schools and the appeals of denials of such petitions are the responsibility of Immigration and Customs Enforcement; and (2) applications for S nonimmigrant status are the responsibility of the Office of Fraud Detection and National Security of U.S. Citizenship and Immigration Services. “The AAO does not have appellate jurisdiction over an appeal from the denial of an application for adjustment of status under section 245(a) of the Immigration and Nationality Act (the Act). 8 C.F.R. § 245.2(a)(5)(ii).”24 “The AAO has jurisdiction to review denials of applications for adjustment of status filed by aliens seeking the bona fide marriage exemption and aliens in U or T nonimmigrant status. Section 245(e), (1) and (m) of the Act, 8 U.S.C. § 1255(e), (I), (m); 8 C.F.R. §§ 245.l(c)(8)(viii), 245.23(i), 245.24(0(2). The AAO has no jurisdiction to review denials of applications for adjustment of status under section 245(a) of the Act. 8 C.F.R. § 245.2(a)(5)(ii).” 25In an “as yet” non-precedential AAO Decision26, USCIS through AAO hasaffirmatively stated its position on the jurisdictional question of citizenship claimsat least between itself and EOIR. AAO has also pointed out the potential value oftestimony before an IJ on certain questions of fact. While the findings of fact madethrough testimony will be given significant weight, it appears that AAO mayreview such findings for substantial evidence and/or clear errors. Perhaps this will24 Id.26 From a non-precedential AAO Decision at: Dec022010_01E2309.pdf Page 14 of 17
  • 15. be reflected in the long-anticipated upcoming AAO Rulemaking. The DHS Agendapredicts something to be published in March 2012. “U.S. Citizenship and Immigration Services (USCIS) is not bound by a determination of the Executive Office for Immigration Review (EOIR) that an applicant is a U.S. citizen. An immigration judge may credit an individuals citizenship claim in the course of terminating removal proceedings for lack of jurisdiction because the government has not established the individuals alienage by clear and convincing evidence. See 8 C.F.R. § 1240.8(a), (c) (prescribing that the government bears the burden of proof to establish alienage and removability or deportability by clear and convincing evidence). The immigration judges decision regarding citizenship, however, is not binding on USCIS. USCIS retains sole jurisdiction to issue a certificate of citizenship and the agencys decision is reviewable only by the federal courts, not EOIR. Sections 34l(a) and 360 of the Act, 8 U.S.C. §§ 1452(a), 1503; 8 C.F.R. 341.1; see also Minasyan v. Gonzalez, 401 F.3d at 1074 n.7 (noting that the immigration court had no jurisdiction to review the agencys denial of Minasyans citizenship claim). In addition, while the government bears the burden of proof to establish an individuals alienage in removal proceedings before EOIR; in certificate of citizenship proceedings before USCIS, the applicant bears the burden of proof to establish the claimed citizenship by a preponderance of the evidence. Section 34l(a) of the Act, 8 U.S.C. § 1452(a); 8 C.F.R. § 341.2(c). Although the immigration judges finding regarding the applicants citizenship is not binding on these proceedings, the record established before the immigration judge provides probative evidence relevant to the N-600 application. Here, the immigration judge credited the testimony provided by the applicants paternal aunt as generally reliable, detailed, cohesive, and supported by the documentary evidence in the record. See Written Decision of the Immigration Judge, at 10. Specifically, the applicants paternal aunt testified that the applicants father was born in El Paso, where he lived with his family until 1924 when the children moved to Mexico with their mother. Id. at 4-5. The applicants father returned to the United States with his brother and mother in 1927, and his brother was killed in a farming accident. Id. at 5. The applicants father again returned to the United States around 1936, and he lived with the applicants paternal aunt in El Paso beginning in or around 1939. Id. at 5-6.” At p. 3As for the value of an erroneously issued passport, AAO addressed that issue intwo related “as yet” non-precedential decisions27 at. AAO explained that USCISwill not be bound by the mere presence of a passport when clear and convincingevidence in the applicant’s case file supports a conclusion that the applicant hasNOT attained U.S. citizenship. USCIS has established mechanisms and proceduresto contact the Passport Agency to re-examine and likely revoke an erroneouspassport.An unfortunate mistake by Congress is still set forth in the statute as follows:27 Find these two related non-precedential decisions at: Aug182011_01E2309.pdf. and Jul172009_12E2309.pdf Page 15 of 17
  • 16. 22 USC § 2705 Documentation of citizenship The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction: (1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States. (2) The report, designated as a ``Report of Birth Abroad of a Citizen of the United States, issued by a consular officer to document a citizen born abroad. For purposes of this paragraph, the term ``consular officer includes any United States citizen employee of the Department of State who is designated by the Secretary of State to adjudicate nationality abroad pursuant to such regulations as the Secretary may prescribe.The above statute is the basis for what I consider a terrible decision on this subjectmatter.Matter of Villanueva, 19 I&N Dec. 101 (BIA 1984) makes zero reference toMatter of Rocha, 10 I&N Dec. 770 (BIA 1969) which held: “Notwithstanding that respondent acted in good faith and made a full disclosure of all the facts at the time of her application for a United States passport, the erroneous issuance to her of such a passport by an official or the U.S. Government does not bestow citizenship on her when she did not acquire U.S. Citizenship at birth abroad under any statute, and she is deportable as an alien who was excludable at the time of entry.”Villanueva makes a big stink about a passport being “conclusive proof” unless“void on its face” and states that a passport cannot be collaterally attacked inadministrative proceedings. This is incorrect and incomplete. While INS on itsown could not collaterally attack the passport administratively in 1984, just asUSCIS cannot do so today; DOS could then and still can, indeed always could,easily revoke a passport administratively.The phrase “void on its face” is not developed. That particular case was remandedto be further developed. Was that record developed to the point where theerroneous basis and invalidity of the improperly issued passport was so obviousthat the challenge to its validity was not a mere “collateral attack” but a head-on Page 16 of 17
  • 17. challenge? Was the erroneous issuance of the passport so blatantly obvious that itwas easily revoked?Current USCIS procedure is to hold the USCIS case in abeyance and consult DOSto reconsider and revoke a passport. Villanueva is overstated. It needs to berevisited and replaced with something more accurate and in tune with the currentreality. It is interesting to note that Villanueva did not mention or overrule Rocha. On Motions to ReconsiderFrom the 11th Circuit on January 3, 2012: “A motion to reconsider presented to the BIA “shall state the reasons for the motion byspecifying the errors of fact or law in the prior Board decision and shall be supported bypertinent authority.” 8 C.F.R. § 1003.2(b)(1); INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C).However, we have held that a motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind. Therefore, merely reiterating arguments previously presented to the BIA does not constitute ‘specifying . . . errors of fact or law’ as required for a successful motion to reconsider.Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (alteration, quotations, andcitation omitted).”28These meanderings are just a few thoughts on a topic of interest to me. I hopesomeone out there finds something of use in them as well.28 Alvarez v. U.S. Att’y Gen., No. 11-11384 (11th Cir., 1/3/12) Page 17 of 17