Mischaracterizations of Evidence, Hyperbolic Rhetoric,
Total Fabrications, and Unsupported or Conslusory
Assertions of Counsel
By Joseph P. Whalen (September 21, 2013)
How often have you seen the following quotes and citations? I do not feel that I
need to do more than point out these increasingly frequent citations but if you
cannot figure out the message, then jump to the end of this article when confused.
…However, the unsupported statements of counsel on appeal or in a motion
are not evidence and thus are not entitled to any evidentiary weight. See
INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984)1
; Matter of Ramirez-
Sanchez, 17 I&N Dec. 503 (BIA 1980)2
Moreover, the AAO declines to expand the beneficiary's work of setting up
the petitioner and establishing his family in the United States as work on
behalf of the foreign entity. The record and this premise are not
substantiated in the record by supporting 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.
Above from: NOV232005_25B4203.pdf at p. 3
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972) held:
Since the burden of proof to establish eligibility for the benefits sought rests
with petitioner, who seeks to accord beneficiaries classification as trainees
under section 101(a)(15)(H)(iii) of the Immigration and Nationality Act, as
amended, the contention that petitioner need only go on record as stating
that training is not available outside the United States is rejected; likewise
rejected is the contention that petitioner may rely solely upon his statement
"on record" that beneficiaries will not displace U.S. workers, particularly
1 [ Footnote 6 ] Respondent contends that the case is moot. Brief for Respondent 1-6. She asserts that since her return from Thailand in April 1974, she has been
physically present in the United States for a continuous period of more than seven years. Accordingly, respondent claims that even if the Court were to reverse she
could obtain suspension of deportation.
Respondent's mootness argument is without merit. Although respondent has filed a motion with BIA asking that her deportation proceeding be reopened, granting
of the motion is entirely within BIA's discretion. See 8 CFR 3.2 (1983); INS v. Jong Ha Wang, 450 U.S. 139, 143 -144, and n. 5 (1981). Moreover, even if BIA does
reopen the proceeding, there is no basis in the present record for concluding that BIA will determine that respondent is eligible for suspension of deportation.
Counsel's unsupported assertions in respondent's brief do not establish that respondent could satisfy the "continuous physical presence" requirement. In short, we
have no basis for concluding that the case is or will become moot.
2 Held, in part: (4) Counsel's comments in support of a motion to suppress are not evidence.
when such statement is contradicted by other evidence of record.
Accordingly, the petition is denied for failure of petitioner to submit an
adequate training program, for failure to establish why the alleged training
could not he obtained in beneficiaries' country, and because productive
employment is involved which would displace United States workers.
More frequently we are finding AAO characterizing some of the “overly zealous”
unsupported assertions a bit more bluntly. Here are examples:
Counsel's baseless and hyperbolic claim that denial of the petition may
lead to widespread violence adds nothing to counsel's legal argument.
Above from: Mar252011_01C1101.pdf at p. 7
…. repeating the language of the statute or regulations does not satisfy the
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp.
1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly,
USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The
Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990).
Above from: JAN092013_02B2203.pdf at p. 8
On appeal, counsel requests that the AAO "re-review" the same evidence
the director considered and submits the petitioner's self-serving 48-page
essay-style curriculum vitae. This appellate submission mostly reiterates
points the director already considered and fails to expressly address the
director's concerns. Nevertheless, the submission appears to minimally
allege errors in the director's decision such that we will not summarily
dismiss the appeal pursuant to 8 C.F.R. 5 103.3(a)(l)(v). For the reasons
discussed below, we find that the record contains voluminous
documentation that is mostly frivolous and fails to support the hyperbolic
statements by counsel, the petitioner and the petitioner's references.
Ultimately, while the petitioner was qualified to work on a nationally
significant project as of the date of filing, on that date he had yet to publish
a single article and the record contains no evidence that his presentations,
most of which were poster presentations, had garnered any attention in the
Above from: Apr012011_01B5203.pdf at p. 2
Please, stop the slop in immigration case filings!
That’s my two-cents, for now.
e-mail the author at: email@example.com