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Proof Positive that AAO is Capable of
“Specificity” in a Sustained Appeal or Motion
By Joseph P. Whalen (July 9, 2014)
In a recent series of articles, I first praised AAO for demanding specificity in
initial decisions coming to it from the field level offices (District Offices, Field Offices
(including National Benefits Center), and Service Centers). Then I encountered an
extremely vague sustained appeal from AAO. I noted the disparity between the levels of
detail between AAO’s sustained and dismissed appeals and/or motions. It left me
somewhat perturbed. But after cooling my heels for a little while, I “made excuses” for
AAO’s disparate treatment. I postulated three (3) plausible benign explanations and a
single not so nice possibility.
Those can be summed up as being related to:
(1) Contemplating a significant re-write for submission as a precedent;
(2) Privacy concerns for the alien of “extraordinary ability” who might
become easily identifiable;
(3) Fraud prevention efforts or;
(4) AAO’s conscious choice to “NOT be helpful” (this last one I choose not
to believe, but it is within the realm of possibility).
Varying Levels of Specificity
It appears quite evident to me that from a legal standpoint, an agency is required
to fully explain any and every denial of a benefit. As AAO was recently quite vocal
about the issue of providing for an opportunity to make a meaningful appeal. I further
added to the discussion certain considerations as what would constitute anadequate
basis (the full record of proceeding vs. final decision alone) for a meaningful appellate
review. While not all USCIS benefit refusals are subject to an administrative appeal,
everyone who is refused or denied a benefit is afforded an opportunity to the file a
Motion even if there is NO CHANCE of success. While the filing of an appeal or motion
does not halt the operative effect of any order (such as removal, voluntary departure, or
de-scheduling from an Oath Ceremony); many seem to think it does. Unlike a frivolous
asylum application, which has devastating ramifications for the filing of a “frivolous”
application, meritless appeals and motions might just be summarily dismissed or
rejected, without refund. The only true and direct “negative consequence” from AAO
for filing the “patently frivolous” appeal is censure of an attorney or accredited
representative. AAO and all USCIS Officers canand do make referrals for “practitioner
discipline” to DHS Counsel which may eventually go EOIR for possible suspension or
expulsion from practice before EOIR and DHS.
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This Decision is found at: JUN242014_01E2309.pdf
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ISSUE: Dad’s physical presence in U.S. prior to claimant’s birth.
RULE: Former § 301(a)(7) of the Act.
(d) Denial. If USCIS denies the application, the applicant will be furnishedthe reasons for denial and advisedofthe right to appeal in accordance with 8 CFR
(e) Subsequent application. After an application for a certificate of citizenship has been denied and the time for appeal has expired, USCIS will reject a
subsequent application submitted bythe same individual andthe applicant will be instructedto submit a motion to reopen or reconsider in accordance with 8
CFR 103.5.The motion must be accompanied by the rejected application andthe fee specified in 8 CFR 103.7.
[76 FR 53804, Aug. 29, 2011]
8 CFR § 341.5(e) stinks and needs to be changed. I told USCIS as much when that last revision was done during the retrospective review.
They did not listen and now AAO had to use sua sponte authority to overcome the bad regulation as well as the two bad underlying decisions.
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Analysis: Specific facts are discussed in abundance and applied to the law.
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Conclusion: Preponderance of the evidence standard of proof is satisfied.
Prior AAO Decisions: The April 14, 2006 AAO Decision is NOT posted but two
decisions from Harlingen, TX are posted which MIGHT be this appellant’s siblings
cases. They were denied but they had similar discrepancies in dates of birth and dad’s
physical presence. SEE: APR262006_01E2309.pdf and APR262006_03E2309.pdf
According to the April 8, 2013, AAO REJECTION of a Motion that was filed
without first filing an N-600 so that it could be REJECTED and then being instructed
to file a MOTION which was what was just REJECTED, the 2006 Appeal was
Summarily Dismissed. The repeat of such a ridiculous situation needs to be avoided.
This can be easily fixed by changing the regulations concerning the N-600s (or any
citizenship claim application). See appended AAO REJECTION.
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Decision found at: APR082013_01E2309.pdf
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See also: http://www.slideshare.net/BigJoe5/aaos-worst-n600-dismissal-ever-nov-22-2011