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Specificity Seems to be the Order of the Day at USCIS' AAO and IPO

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How much detail is needed in an application or petition? What quality of evidence is needed? When is enough actually enough? How much is too much? Please read the article with such questions in mind.

How much detail is needed in an application or petition? What quality of evidence is needed? When is enough actually enough? How much is too much? Please read the article with such questions in mind.

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  • 1. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 1 “Specificity” Seems To Be The Order Of The Day At USCIS’ AAO & IPO By Joseph P. Whalen (July 2, 2014) Introduction Is it a just a buzz word or does it have teeth? Will it reach around and bite you? It might just do that! Bite you, that is. Specificity is a darn good thing, sometimes, in certain contexts, but can be detrimental at other times. As with most things, too much of even a seemingly “good” thing can actually be “bad”. “Specificity” is just such a thing. I ran a simple search of the word on the USCIS website and got around 35 hits. Many were to Memos, AAO non-precedents1 , Q&As, FAQs, and a lot of items from various stakeholder engagements. Here is a screenshot of the first page of results. 1 http://www.slideshare.net/BigJoe5/uscis-aao-is-moving-in-the-right-direction and http://www.slideshare.net/BigJoe5/comments-on-recent-aao-eb5-decisions
  • 2. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 2 Background and Thoughts on a Clear Need for Improvements My motivation to write about the concept of “specificity” is complicated. On the one hand, when I wrote some suggested EB-5 regulations2 which I have submitted to USCIS in various incarnations, several times, for several years, I really hammered home the need for greater “specificity” in all correspondence, such as any request for evidence, Notice of Intent…, and Decisions whether Denials or Approvals. I suppose that you could call “specificity” a “pet peeve” of mine. For years as a trainer, mentor, supervisor, Liaison, and all around “go to guy” within various offices and various occupations, I have battled vagueness, muddled thought processes, poor writing skills and grammar, as well as plain old sloppy work. I have encountered sloth, negativity, bleeding hearts (by that I mean folks who should have been social workers instead of adjudicators), and tangential forays into the obscure and irrelevant (such as being concerned with the criminal history of an I-1303 beneficiary or an N-6004 citizenship claimant, because it has nothing to do with the familial relationship or citizenship status), among other things (inter alia). I have often found myself asking very leading questions and sometimes grilling folks to make them explain themselves. It could be uncomfortable and even somewhat excruciating for them and me, but in the end, very worthwhile and productive. Whether one chooses to characterize the above described behavior as iterative or more in keeping with the Socratic Method either entails a back-and-forth exchange with the “instructor” peppering the other party with questions, posing scenarios or a conundrum of some sort or another, it works for me and I dare say it worked for them as well. I am pleased to see that that theme is being reinforced and reiterated by AAO in recent decisions and in the announced new training initiatives5 as stated by the IPO Chief at the IIUSA event in Washington, D.C. back in May of this year. AAO has been remanding cases with instructions to re-write a better decision. A primary objective in this course of action is an obvious desire to fulfill an obligation to the persons seeking any immigration or citizenship benefit to explain in sufficient detail and enough specificity to allow for a meaningful appeal if so desired. It is also apparent that the agency as a whole and IPO as an example are making serious headway to improve the quality of initial agency decisions. That is, in that it is being effectuated through increased staff with additional skill sets -- economist for example, and attorneys with securities and investment experience. 2 http://www.slideshare.net/BigJoe5/revised-and-updated-suggested-re-write-of-8-cfr-2046-m-regional-center- regulations-march-2012 3 A petition for Alien Relative 4 Application for a Certificate of Citizenship (for someone who already is a U.S. Citizen under the law either by acquisition at birth abroad to a citizen parent or parents or by derivation upon naturalization of alien parents (now called “automatic acquisition”). 5 http://www.slideshare.net/BigJoe5/uscis-ipo-is-moving-in-the-right-direction
  • 3. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 3 A Meaningful Appellate Review As I was writing this article which, seemed to drag on and on because I kept getting distracted (I began it on June 30th, I was perusing circuit court case decisions and the following passage jumped out at me from a 4th circuit unpublished decision: “When rendering a sentence, the district court mustmake an individualized assessment based on the facts presented,” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted), and must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50. 6 [Highlighting added for emphasis.] It was the phrase "meaningful appellate review" that first grabbed my attention while the other highlighted phrase is, in my mind, the essence of “specificity”. The theme of a “meaningful appellate review” had come up in recent AAO EB-5 Remands in that AAO was stressing the need for specificity in detailed initial decisions. They sent back some cases for decision re-writes and included clear directives as to the necessity of a detailed analysis. AAO did this even if it appeared that certain cases had no chance of approval on technical grounds. I suppose that was done so the applicant could make a better showing when re-filing a new application or petition (a true customer service). It was an effort to make sure that the applicant or petitioner was properly “put on notice of deficiencies in their evidence” so that they could have an “opportunity to make a meaningful appeal”. This was, in my opinion, an effort to stave off any “due process challenges” in any 5 USC § 706 filings7 . That section reads as follows. §706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.) ________________________________________________________________________ 6 From page 3 of unpublished decision at: http://www.ca4.uscourts.gov/Opinions/Unpublished/144043.U.pdf 7 5 USC Chapter 5 is the United States Code Chapter wherein resides the Administrative Procedures Act or APA. The first incarnation of the APA became law on June 11, 1946.
  • 4. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 4 Those who keep track of USCIS cases that get challenged in District Court or perhaps more precisely those who bring such challenges, are undoubtedly aware of the key terms from 5 USC § 706(2)(a). Specifically, the words “arbitrary, capricious, [or] an abuse of discretion” are words that the petitioners, applicants, and their counsel long to hear but rarely do. They are also the words that government agencies fear most. The conscientious government agents/actors fear that it has actually happened while (thankfully) only a scant few hope that they can “get away with it”. Preferred Standard of Appellate Review Anyway, while many readers may already be familiar with U.S. v. Gall and its abuse-of-discretion review and general principle of due deference to any and all reasoned and reasonable conclusion(s) in the proceeding below, I wanted to look into the other decision cited, namely U.S. v. Carter. While Carter dealt with a challenge to the reasonableness of the sentence in a criminal case, wherein the District Court Judge strayed outside the properly calculated advisory Guideline range, the underlying concept and review standard utilized therein, applies across many contexts. Here is a snippet from Carter: Jack Dale Carter pleaded guilty to possessing a firearm after a felony conviction in violation of 18U.S.C. § 922(g)(1) (2006). Carter's properly-calculated advisory Guidelines sentencing range is 37 to 46 months, but the district court sentenced him to a term of probation. TheGovernment appeals, arguing that Carter's sentence is procedurally and substantively unreasonable. Because the district court failed to state any particularized basis to support its chosen sentence, we cannot uphold the sentence as procedurally reasonable or determine its substantive reasonableness. Accordingly, we vacate the sentence and remand for further proceedings. [Emphases Added.] It appears to me that what is crucial in the initial decision is that there be enough specificity to constitute a particularized basis which should be given due deference if it is also found to be reasoned and reasonable. In other words, appellate reviews quite often need to use a “substantial evidence test” to determine if the “fact-finder” below was a “reasonable adjudicator” or not. Other standards of review are possible, such as a review for clear error as an example. However, because the initial adjudications usually rely on the “preponderance of the evidence” standard of proof, AAO is quite often reviewing an exercise of a “judgment on the merits” of the case based on the evidence of record. Was “sound judgment” the order of the day? Does the “conclusion” find support in “reasonable inferences” drawn from “findings-of-fact” based upon “substantial evidence” which can be described as “probative” and “credible” and which comes from “reliable sources”? That particular review scenario most often
  • 5. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 5 requires a full de novo review which needs a looser but clearly delineated review standard of review. Most often, it seems to me, the proper standard of review is the “abuse of discretion standard of proof” with a test for “reasonableness”. In applying any such “test for reasonableness” there needs to be a well-written and well-reasoned underlying decision for the appellate reviewer to review. This is not a new concept. It is extremely old, but newer folks need to be brought up to speed. The following snippet is from a useful Precedent Decision on topic from the BIA. Matter of Briones, 24 I&N Dec. 355 (BIA 2007) includes this notable footnote 1: “The Immigration Judge’s original oral decision contains transcription errors that he corrected, both by handwritten interlineation and by issuance of the March 31, 2005, written decision from which the present appeal was taken. We conclude, and the parties do not argue otherwise, that theImmigration Judge’s decision, as corrected, provides a meaningful basis for appellate review.” [Emphases Added] Too Much Specificity—Too Much of a Good Thing As the reader may recall (if I haven’t bored you to sleep yet), it was mentioned above that too much specificity can be a bad thing at certain times. On that aspect, I am referring to the amount of specificity offered up by the one seeking a benefit or some form of relief. Once again, I elect to use the EB-5 Regional Center and/or alien investor to illustrate this point. IF, an alien seeking an EB-5 visa as an investor/entrepreneur has not already created at least 10 permanent full-time jobs for qualifying employees, THEN a Matter of Ho - compliant Business Plan8 will be required. If that document is too specific and thereby extremely limited in scope, it can paint one into a corner with no way out. For EB-5 purposes, one needs a certain amount of flexibility. Such desired flexibility can come from taking the approach of building it into one’s plans through the proper and somewhat liberal use of transparent complexity and/or the use of “general proposals” that provide “general predictions” achieved through the inclusion of some additional possibilities supported by hypothetical plans and predictions. The latter approach of aiming for flexibility through the use of transparent complexity usually provides the desired leeway but does not garner any true deference and offers no realistic expectations of reasonable reliance without considerable additional effort towards specificity in a future proceeding in the multi-stage processes which are at the heart of our EB-5 reality. That’s my two-cents, for now! 8 Matter of Ho, 22 I&N Dec.206 (AAO 1998) not to be confused with Matter of Ho, 19 I&N Dec. 582 (BIA 1988).
  • 6. Contact: joseph.whalen774@gmail.com OR (716) 604-4233 OR (716) 768-6506 Page 6 About the Author Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 or (716) 768-6506 E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the Internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.