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Proof Positive that AAO is Capable of “Specificity” in a Sustained Appeal or Motion


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Proof Positive that AAO is Capable of “Specificity” in a Sustained Appeal or Motion!

Proof Positive that AAO is Capable of “Specificity” in a Sustained Appeal or Motion!

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  • 1. Contact: (716) 604-4233- or (716) 768-6506 Page 1 Proof Positive that AAO is Capable of “Specificity” in a Sustained Appeal or Motion By Joseph P. Whalen (July 9, 2014) Introduction 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.
  • 2. Contact: (716) 604-4233- or (716) 768-6506 Page 2 This Decision is found at: JUN242014_01E2309.pdf
  • 3. Contact: (716) 604-4233- or (716) 768-6506 Page 3 ISSUE: Dad’s physical presence in U.S. prior to claimant’s birth. RULE: Former § 301(a)(7) of the Act. § 341.5 (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 103.3. (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.
  • 4. Contact: (716) 604-4233- or (716) 768-6506 Page 4 Analysis: Specific facts are discussed in abundance and applied to the law.
  • 5. Contact: (716) 604-4233- or (716) 768-6506 Page 5 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.
  • 6. Contact: (716) 604-4233- or (716) 768-6506 Page 6 Decision found at: APR082013_01E2309.pdf
  • 7. Contact: (716) 604-4233- or (716) 768-6506 Page 7 See also: