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Purpose of initial evidence and the prima facie showing

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  • 1. Purpose of Initial Evidence and the Prima Facie Showing By Joseph P. Whalen (May 14, 2012)When someone files a petition or application for a benefit or relief under the INAthey must follow the filing instructions. Forms need to be properly completed;signed by someone authorized to sign it; and accompanied by any required fee, or afee waiver request. The vast majority of requests submitted must also beaccompanied by minimum required initial evidence or in the relief contextsometimes this will be described as making a prima facie showing in the case,especially when seeking to reopen a case through a Motion to the BIA. The Relieffrom Removal and Affirmative Benefits Request contexts are similar but distinct.While EOIR through its Immigration Judges (IJs) or the Board of ImmigrationAppeals (BIA or Board) can exercise the authority of the Attorney General andbestow certain benefits as prescribed under the INA, those benefits are usuallybestowed as a matter of discretion to grant relief from an alternate penalty whichwould usually be removal from the United States. If an alien is ordered removedand later finds a pathway to a benefit under the INA, (s)he might seek to reopenproceedings in order to apply for such benefit as a means of gaining relief fromremoval. There are limits on the alien’s legal options or available proceduralmechanisms after the Order of Removal has been entered. One must make a strongcase for the Order of Removal to be set aside in favor of relief. Therefore, the BIAproperly denies a Motion to Reopen because of a failure to establish prima facieeligibility for the relief sought. See Huang v. Att’y Gen., 620 F.3d 372, 389-90 (3rdCir. 2010).Most benefits available under the INA are bestowed through an affirmative directrequest for them through the filing of a petition or application. The primary Page 1 of 4
  • 2. statutory authority to administer the INA within the United States is vested in theSecretary of Homeland Security [or DHS]. The principal formal benefits grantingarm of DHS is the United States Citizenship and Immigration Services (USCIS).This is not to say that only USCIS decides to grant or deny INA benefits. TheUnited States Customs and Border Protection agency (CBP) actually grants anddenies far more benefits but the vast majority of those benefits are not determinedthrough formal written petitions and applications. Instead, CBP decides whether toadmit or refuse to admit individuals making application for permission to enter theUnited States at our land border or other ports-of-entry (POEs) including by sea orair. That said, USCIS deals with the formal written requests for compleximmigration, naturalization, nationality and/or citizenship benefits plus manyadditional collateral and interim benefits.The majority of of benefits under the INA are discretionary and bestowed ordenied though an exercise of delegated discretionary authority. Some INA benefitsare qualified entitlements that are available unless one is legally barred fromreceiving it, i.e., disenfranchised by law. Precious few INA benefits areentitlements claimed as a legally enforceable right once eligibility is fullyestablished with sufficient, credible, and satisfactory evidence as proof of suchentitlement. The most obvious example of an entitlement under the INA iscitizenship whether by birth in the U.S. (with a few obscure exceptions), or byacquisition at birth abroad, or through later derivation, (now called automaticacquisition), by action of law.Another “benefit” under the INA which is often not thought of as an entitlement isan entitlement but without any immediate, automatic, or tangible benefit. That“non-benefit entitlement” is classification in a visa category. The entitlement to a Page 2 of 4
  • 3. visa classification is a simple recognition of the establishment of statutorilyprescribed and defined facts satisfactorily proven with credible evidence. Theattainment of a visa classification is merely an initial or interim step towardsobtaining an immigrant visa. The path towards attaining any visa classification isvariable. There are a wide variety of immigrant and non-immigrant visaclassifications. Some are harder to qualify for or prove than others. Some rely onsimple evidence such as a birth certificate to show the relationship between motherand child. Other classifications require the submission of large amounts ofcomplex evidence such as an I-140, Immigrant Petition for Alien Worker for anEB-1 “alien of extraordinary ability”. This following excerpts are from the reviewof just such a case. “.... If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a “level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor,” 8 C.F.R. § 204.5(h)(2), and “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered “sustained national or international acclaim” are eligible for an “extraordinary ability” visa. 8 U.S.C. § 1153(b)(1)(A)(i).”Kazarian v. USCIS, 596 F.3d 1115, 3436 (9th Cir. 2010). [Emphasis added.] “.... While other authors’ citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. § 204.5(h)(3). ....”Kazarian, supra at 3441. [Emphasis added.] Page 3 of 4
  • 4. “[5] The AAO’s conclusion rests on an improper understanding of 8 C.F.R. § 204.5(h)(3)(iv). Nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with. Again, while the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement. Love Korean Church, 549 F.3d at 758.”Id., at 3442 [Emphasis added.]Through Kazarian, the Ninth Circuit pointed out that this particular visaclassification requires the petitioner to first answer an “antecedent proceduralquestion” by way of submitting the minimum required initial evidence. 8 CFR §204.5(h)(3) or (4). After that first threshold is crossed, there is a further need toevaluate the evidence in order to determine if the totality of that evidence answersthe overarching and/or underlying eligibility questions. That process culminates ina “final merits determination.” While Kazarian is used to support a “two-stepanalysis” consisting of a quantitative component followed by a qualitative analysisand evaluation, the concept of initial evidence is broader than that one application.Context plays a major role in determining the relative importance of the initialevidence and the prima facie showing of eligibility to file for further consideration.For example, the acceptance for filing of an I-485, Application to RegisterPermanent Residence or Adjust Status, entitles the applicant to the interim benefitof work authorization. However, in order to file an I-485, one must be eligible tofile. The mere eligibility to file an I-485 is determined by specific required initialevidence which has been predetermined to show prima facie eligibility to file foradjustment of status. The initial demonstration of prima facie evidence of eligibilityit not a guarantee of ultimate approval of that adjustment of status. That’s my two-cents, for now. Page 4 of 4