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Suggested uscis regulation revisions and discussion 5 4-11

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Comprehensive look at need for specific changes in USCIS, EOIR, and other DHS regulations and procedures. Covers claims to citizenship before an IJ or BIA, I-924 Regional Center applications, …

Comprehensive look at need for specific changes in USCIS, EOIR, and other DHS regulations and procedures. Covers claims to citizenship before an IJ or BIA, I-924 Regional Center applications, adjudication and appeals.

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  • 1. DHS Needs Refinement of Division of Powers and Intra-Departmental Cooperative Agreements; Need for DHS-DOJ Joint Rulemaking; and AAO RegulationsOn February 28, 2003, the Department of Justice published, as separate Part VII, in theFederal Register: “Aliens and Nationality; Homeland Security; Reorganization ofRegulations” as a Final Rule (68 FR 9824-9846, Feb. 28, 2003), and it provides in parts: ―The Homeland Security Act of 2002, as amended, transfers the functions of the Immigration and Naturalization Service to the Department of Homeland Security. The Homeland Security Act of 2002, as amended, retains in the Department of Justice, under the direction of the Attorney General, the functions of the Executive Office for Immigration Review and other functions related to immigration that are indigenous to the functions of the Attorney General. …….. ―EOIR was created by the Attorney General in 1983 to combine the functions of immigration judges and the Board of Immigration Appeals into a single administrative component of the Department of Justice under the Attorney General. 48 FR 8038 (Feb. 25, 1983). The Office of the Chief Administrative Hearing Officer (‗‗OCAHO‘‘) and its administrative law judges were added to EOIR in 1987. 52 FR 44971 (Nov. 24, 1987). This administrative structure separated the administrative adjudication functions from the enforcement and service functions of the INS, both for administrative efficiency and to foster independent judgment in adjudication. However, because both INS and EOIR were elements of the Department of Justice, the regulations affecting these components were included in the same chapter. The Attorney General, as the head of the Department, amended regulations affecting both components in a coordinated manner. The enactment of the Homeland Security Act of 2002, and its transfer of functions to the Department of Homeland Security, now requires that the INS regulations and the EOIR regulations be placed in separate chapters.‖ ……… ―….As explained more fully below, this final rule transfers certain parts that relate to the jurisdiction and procedures of EOIR to a new chapter V, i.e. administrative review provisions.‖ At 9824 The above makes clear that the administrative review provisions were primarily EOIR regulations, having been primarily written by EOIR for their use. The provisions pertaining to the AAU of Legacy INS were not the main focus or very well considered when they were originally written and have not been updated in accordance with changes over the years. “B. General Comments The rule makes no substantive change in the regulations. The rule is a technical rule dividing the regulations for purposes of the transfer of authorities under the HSA. For the ease of public understanding, the structure of chapter V has been created in parallel to the existing structure of chapter I. At 9824…….. Page 1
  • 2. The rule also makes a number of specific technical amendments to continue existing authority that cannot be made by simply moving or duplicating sections. For example, the precedent decisions of the Board of Immigration Appeals and the INS are published in Administrative Decisions under the Immigration and Nationality Laws of the United States, cited as ‗‗I&N Dec.‘‘ However, there is no rule that currently provides for the publication of Service decisions outside of 8 CFR 103.3, and that provision is incomplete. Accordingly, a provision has been added to chapter I, part 1, providing for the determination of precedent decisions within the Department of Homeland Security and publication of such decisions by EOIR in Administrative Decisions under the Immigration and Nationality Laws of the United States.”At 9825 “F. Summary of the Changes From 8 CFR Chapter I to Chapter V Set out below are general descriptions of the sets of changes in chapter I to chapter V and the rationale for each set of changes. ………… Part 103—Powers and duties of service officers; availability of service records, is partially duplicated and is amended in several sections to ensure that the existing practices of EOIR are not changed through the transfer of functions.‖ At 9826 ………...... ―Part 238—Expedited removal of aggravated felons, is duplicated in part 1238 because the expedited removal under this part can be converted to ordinary removal proceedings before an immigration judge under part 240, and initiated proceedings under part 240 may, upon approval of the immigration judge, be terminated and the INS may then file expedited removal proceedings under part238. [See 8 CFR § 238.1 and/or § 1238.1 starting on page 20.] Part 239—Initiation of removal proceedings, is duplicated as part 1239 because the initiation of proceedings before immigration judges is a detailed mix of authority of service officers to initiate and file charges before an immigration judge.‖ At 9826-9827Matter of Lujan, 25 I&N Dec. 53 (BIA 2009) The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge‘s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen. ―…without an explicit grant of appellate jurisdiction in an otherwise carefully constructedregulatory and statutory process, we cannot assume appellate jurisdiction. Moreover, the DHS‘shypothetical regarding a criminal alien does not persuade us that we should assert jurisdiction inthe absence of such an explicit grant. First, the criminal grounds of inadmissibility are notgrounds that can be invoked in an expedited removal proceeding, which is limited to aliens who Page 2
  • 3. are inadmissible under sections 212(a)(6)(C) and (7) of the Act. While an alien may also beinadmissible on grounds related to criminal conduct, it is clear that the expedited removalprocess was not designed for the adjudication of contested issues of removability such ascriminal charges. Second, the DHS has inherent flexibility, in the exercise of prosecutorialdiscretion, to pursue removal of an alien in either expedited removal proceedings or proceedingsunder section 240 of the Act. The DHS is aware of the regulatory scheme governing furtheradministrative review of claims in expedited removal proceedings, and we are not persuaded byits assertion that this scheme should be ignored. Finally, it is less than likely that a person foundby an Immigration Judge to be a citizen of the United States would ―indisputably‖ have noauthorization to remain in the United States, even though the DHS may disagree with theImmigration Judge‘s decision in a close case. Furthermore, where it is apparent that citizenship isto be a contested issue, the DHS has the prosecutorial discretion to stop the expedited removalprocess and initiate removal proceedings under section 240 of the Act. The limits on our appellate jurisdiction and on the ability of the DHS to commencesection 240 removal proceedings are regulatory in nature. Just as we are bound by thoseregulations, so too may those regulations be amended if the Attorney General, acting inconcert with the Secretary of Homeland Security, so determines. [Emphasis added.] We conclude by noting that an important purpose behind expedited removal proceedingsis to ensure that appropriate cases are, in fact, expedited. This means deciding cases involvingminimal or no controversy promptly and without multiple layers of administrative and judicialreview. There is, for example, no further administrative review of an Immigration Judge‘sdetermination that an arriving alien has or lacks a credible fear of persecution. 8 C.F.R. §§1208.30(g)(2)(iv)(A), (B) (2009). We would be acting ultra vires if we assumed jurisdiction insuch a case, just as we would if we assumed jurisdiction here.‖ At 56One troublesome regulation that needs to be tackled is 8 CFR § 1235.3(b)(5)(iv), which states:―(iv) Review of order for claimed lawful permanent residents, refugees, asylees, or U.S. citizens.A person whose claim to U.S. citizenship has been verified may not be ordered removed. Whenan alien whose status has not been verified but who is claiming under oath or under penalty ofperjury to be a lawful permanent resident, refugee, asylee, or U.S. citizen is ordered removedpursuant to section 235(b)(1) of the Act, the case will be referred to an immigration judge forreview of the expedited removal order under section 235(b)(1)(C) of the Act and§235.6(a)(2)(ii). If the immigration judge determines that the alien has never been admitted as alawful permanent resident or as a refugee, granted asylum status, or is not a U.S. citizen, theorder issued by the immigration officer will be affirmed and the Service will remove the alien.There is no appeal from the decision of the immigration judge. If the immigration judgedetermines that the alien was once so admitted as a lawful permanent resident or as a refugee, orwas granted asylum status, or is a U.S. citizen, and such status has not been terminated by finaladministrative action, the immigration judge will terminate proceedings and vacate the expeditedremoval order. The Service may initiate removal proceedings against such an alien, but notagainst a person determined to be a U.S. citizen, in proceedings under section 240 of the Act.During removal proceedings, the immigration judge may consider any waivers, exceptions, orrequests for relief for which the alien is eligible.‖ Page 3
  • 4. The above regulation is ultra vires because the IJ as a representative of the A.G. is not thedesignee within the INA to make the initial determination of USC inside the United States, theSecretary of Homeland Security through USCIS is the official with delegated statutoryauthority.1 However, in matters of legal interpretation, the A.G. is the final arbiter to whom theSecretary must defer. INA § 103(a)(1) [8 USC 1103(a)(1)]. The BIA can exercise this legalinterpretation authority on behalf of the A.G. USCIS, including AAO can exercise theSecretary‘s authority2 in citizenship claim cases. The AAO/Secretary, in consultation with theEOIR/BIA/A.G., can also publish Precedent Decisions within its areas of expertise (see 8 CFR §103.3(c)).Who deserves the right to consider the facts of the particular citizenship claim case in the firstinstance when there is disagreement between an IJ and ICE Counsel? Is it properly a matter forthe AAO or should it go to the BIA? The BIA has dismissed the DHS appeal and closed that asan option via Lujan.IF, DHS switches to § 240 instead and the BIA disagrees with the IJ determination and then theclaimant fights the Removal Order in a Petition for Review in a Circuit Court of Appeals. DHScan dispute the claim to USC, but if the Circuit Court finds that questions of material facts exist,it then transfers the case to District Court. Again it falls to DHS to fight in court as it should be.However, if the BIA agrees with the IJ what should it do? On the one hand, the BIA isostensibly speaking for the A.G. and the Secretary is supposed to defer to that determination inmatters of legal interpretation. On the other hand, this particular determination is supposed to bemade by the Secretary in the first instance according to the INA.  Should such a case be decided through direct consultation between the BIA and AAO?  Should the case be held in abeyance by the BIA and referred to the AAO?  Should the matter be forwarded (certified or referred) directly to the A.G in order to settle the dispute between DHS and EOIR?  Should the proceedings be remanded back to the IJ with instructions to suspend proceedings and the claimant be directed to file an N-600 with USCIS (the IJ can grant a fee waiver if need be and USCIS will honor it as it does for any other application for relief directed to be filed with USCIS by an IJ‘s order)?  Should the IJ have suspended, terminated without prejudice, or administratively closed the Removal Proceeding and directed the claimant to file an N-600 without deciding the final merits and thus have avoided allowing the case to be appealed to the BIA in the first place?  What is ICE Counsel‘s role? To Join a Motion? To authorize parole? Can ICE detain the individual whose status is uncertain by virtue of a dispute between ICE and the IJ?  Should CBP have contacted USCIS rather than sending the case to Immigration Court?  Should CBP have paroled the individual to appear at a USCIS Office in the same manner as a deferred inspection used to be handled under INS?1 Even the State Department should not be issuing Passports to derivative citizens that are resident inside the U.S.,but that is a whole other debate.2 Department of Homeland Security Delegation Memos 0150 and 0150.1, Delegation to the Bureau of Citizenshipand Immigration Services [now USCIS]. Page 4
  • 5. Any regulations promulgated to address this situation should be made in consultation betweenEOIR and DHS. DHS would need to address the appropriate actions to be taken by CBP, ICEand USCIS at various stages of the processing of the case. Likewise, EOIR must consider thecorrect actions to be taken by an IJ and the BIA in the overall picture and in consideration of therequired actions of the various DHS Agencies.On May 2, 2011, USCIS issued a Final Policy Memo (PM-602-0029) entitled ―Guidance forCoordinating the Adjudication of Applications and Petitions Involving Individuals in RemovalProceedings; Revisions to the Adjudicator‘s Field Manual (AFM) New Chapter 10.3(i): AFMUpdate AD 11-16‖ which was initially issued on February 4, 2011. Similar coordination iscalled for between USCIS and CBP in cases where someone makes a claim to U.S. Citizenshipas an affirmative defense to Expedited Removal.8 CFR § 235.3 Inadmissible aliens and expedited removal.(b) Expedited removal(5) Claim to lawful permanent resident, refugee, or asylee status or U.S. citizenship —(i) Verification of status. If an applicant for admission who is subject to expedited removalpursuant to section 235(b)(1) of the Act claims to have been lawfully admitted for permanentresidence, admitted as a refugee under section 207 of the Act, granted asylum under section 208of the Act, or claims to be a U.S. citizen, the immigration officer shall attempt to verify thealiens claim. Such verification shall include a check of all available Service data systemsand any other means available to the officer. An alien whose claim to lawful permanentresident, refugee, asylee status, or U.S. citizen status cannot be verified will be advised of thepenalties for perjury, and will be placed under oath or allowed to make a declaration as permittedunder 28 U.S.C. 1746, concerning his or her lawful admission for permanent residence,admission as a refugee under section 207 of the Act, grant of asylum status under section 208 ofthe Act, or claim to U.S. citizenship. A written statement shall be taken from the alien in thealiens own language and handwriting, stating that he or she declares, certifies, verifies, or statesthat the claim is true and correct. The immigration officer shall issue an expedited order ofremoval under section 235(b)(1)(A)(i) of the Act and refer the alien to the immigration judge forreview of the order in accordance with paragraph (b)(5)(iv) of this section and §235.6(a)(2)(ii).The person shall be detained pending review of the expedited removal order under thissection. Parole of such person, in accordance with section 212(d)(5) of the Act, may bepermitted only when the Attorney General determines, in the exercise of discretion, thatparole is required to meet a medical emergency or is necessary for a legitimate lawenforcement objective.[CBP or ICE can parole a person who claims U.S. citizenship and refer them to USCIS topursue the claim via an N-600. If warranted, ICE could escort a person to USCIS orelectronically monitor someone determined to be a flight risk, if need be.](iv) Review of order for claimed lawful permanent residents, refugees, asylees, or U.S. citizens.A person whose claim to U.S. citizenship has been verified may not be ordered removed. When Page 5
  • 6. an alien whose status has not been verified but who is claiming under oath or under penaltyof perjury to be a lawful permanent resident, refugee, asylee, or U.S. citizen is orderedremoved pursuant to section 235(b)(1) of the Act, the case will be referred to animmigration judge for review of the expedited removal order under section 235(b)(1)(C) ofthe Act and §235.6(a)(2)(ii). If the immigration judge determines that the alien has never beenadmitted as a lawful permanent resident or as a refugee, granted asylum status, or is not a U.S.citizen, the order issued by the immigration officer will be affirmed and the Service will removethe alien. There is no appeal from the decision of the immigration judge. If the immigrationjudge determines that the alien was once so admitted as a lawful permanent resident or as arefugee, or was granted asylum status, or is a U.S. citizen, and such status has not beenterminated by final administrative action, the immigration judge will terminate proceedingsand vacate the expedited removal order. The Service may initiate removal proceedings againstsuch an alien, but not against a person determined to be a U.S. citizen, in proceedings undersection 240 of the Act. During removal proceedings, the immigration judge may consider anywaivers, exceptions, or requests for relief for which the alien is eligible.[This regulation is ultra vires because an IJ lacks statutory authority to determinecitizenship claims in the first instance. See INA § 103(a).](7) Review of expedited removal orders. Any removal order entered by an examiningimmigration officer pursuant to section 235(b)(1) of the Act must be reviewed and approvedby the appropriate supervisor before the order is considered final. Such supervisory reviewshall not be delegated below the level of the second line supervisor, or a person acting in thatcapacity. The supervisory review shall include a review of the sworn statement and anyanswers and statements made by the alien regarding a fear of removal or return. Thesupervisory review and approval of an expedited removal order for an alien described in section235(b)(1)(A)(iii) of the Act must include a review of any claim of lawful admission or parole andany evidence or information presented to support such a claim, prior to approval of the order. Insuch cases, the supervisor may request additional information from any source and mayrequire further interview of the alien.[It seems that DHS already has regulatory language upon which to base a solo PolicyMemo governing CBP referral actions regarding a citizenship claimant whereby it could bean option for CBP to refer the case to USCIS either, before or instead, to an IJ. In thealternative the same regulations would support a joint Policy Memo between CBP and/orICE and USCIS.] ―Part 337—Oath of allegiance, is duplicated in part 1337 only because it involves the authority of immigration judges to administer the oath of citizenship in naturalization ceremonies, and related authorities.‖ At 9827An IJ only has authority to administer the Oath at a naturalization ceremony upon invitation byUSCIS. An IJ and the BIA lack authority to determine initial citizenship claims such as would bemade via form N-600 or as to final naturalization eligibility as would be made via form N-400 oras reviewable by a District Court under INA §§ 336(b), 310(c), 360(a), or 242(b)(5). Page 6
  • 7. “H. Changes Deferred A number of changes will need to be made in the future, but are not made at this time. For example, part 215, concerning departure control, refers to ‗‗special inquiry officers‘‘ instead of immigration judges. This is not uncommon in the older provisions of 8 CFR that have not been amended since 1987. Amendments to this particular part require the concurrence of the Secretary of State because this part is a parallel to 22 CFR part 46. Rather than attempt to conform two separate parts, neither of which will remain within the jurisdiction of the Attorney General, this commonly understood term—a historical anomaly that predates the creation of EOIR and means ‗‗immigration judge‘‘—is left in place until such time as the Secretary of State and the Secretary of Homeland Security determine to change the substantive regulations, at which time they, and the Attorney General, will make this necessary but only technical adjustment.‖ At 9828Clear Need for Immigration Appellate Regulatory Reforms for Use by AAOSome areas of mutual concern have been addressed by the BIA thus AAO could borrow someideas or at least use some as a starting point. However, there are certain differences where AAOwill need to be creative and open to changes based on qualitative differences in the nature of theunderlying cases before it. Previously existing regulations specific to the AAU (AAO‘spredecessor) are inadequate for AAO‘s current position in its U.S. Citizenship and ImmigrationServices (USCIS) role as a customer service oriented benefits determination organization. Theformer Immigration and Naturalization Service (Legacy INS) was a law enforcement orientedorganization. The law enforcement aspects and functions of Legacy INS have been excised frombenefits adjudications and placed primarily within two other DHS components: 1.) U.S.Immigration and Customs Enforcement (ICE) and 2.) U.S. Customs and Border Protection(CBP), and to a much lesser extent, 3.) The Transportation and Security Administration (TSA)and, 4.) The Federal Protective Service (FPS).8 CFR § 1003.1 Organization, jurisdiction, and powers of the Board of ImmigrationAppeals.(a)(1) Organization. There shall be in the Department of Justice a Board of ImmigrationAppeals, subject to the general supervision of the Director, Executive Office for ImmigrationReview (EOIR). The Board members shall be attorneys appointed by the Attorney General to actas the Attorney Generals delegates in the cases that come before them. The Board shall consistof 15 members. A vacancy, or the absence or unavailability of a Board member, shall not impairthe right of the remaining members to exercise all the powers of the Board.(2) Chairman. …..(3) Panels. …..(4) Temporary Board members. …..(5) En banc process. ….. Page 7
  • 8. (6) Board staff. …..(b) Appellate jurisdiction. Appeals may be filed with the Board of Immigration Appeals from thefollowing: ……(c) Jurisdiction by certification……(d) Powers of the Board —(1) Generally……(2) Summary dismissal of appeals —(i) Standards.(ii) Action by the Board. The Boards case management screening plan shall promptly identifycases that are subject to summary dismissal pursuant to this paragraph. An order dismissing anyappeal pursuant to this paragraph (d)(2) shall constitute the final decision of the Board.(iii) Disciplinary consequences. The filing by an attorney or representative accredited under§1292.2(d) of this chapter of an appeal that is summarily dismissed under paragraph (d)(2)(i) ofthis section may constitute frivolous behavior under §1003.102(j). Summary dismissal of anappeal under paragraph (d)(2)(i) of this section does not limit the other grounds and proceduresfor disciplinary action against attorneys or representatives.(3) Scope of review.(i) The Board will not engage in de novo review of findings of fact determined by animmigration judge. Facts determined by the immigration judge, including findings as to thecredibility of testimony, shall be reviewed only to determine whether the findings of theimmigration judge are clearly erroneous.(ii) The Board may review questions of law, discretion, and judgment and all other issues inappeals from decisions of immigration judges de novo.(iii) The Board may review all questions arising in appeals from decisions issued by Serviceofficers de novo.(iv) Except for taking administrative notice of commonly known facts such as current events orthe contents of official documents, the Board will not engage in fact-finding in the course ofdeciding appeals. A party asserting that the Board cannot properly resolve an appeal withoutfurther fact-finding must file a motion for remand. If further fact-finding is needed in a particularcase, the Board may remand the proceeding to the immigration judge or, as appropriate, to theService. Page 8
  • 9. (4) Rules of practice. The Board shall have authority, with the approval of the Director, EOIR, toprescribe procedures governing proceedings before it. …….[Proceedings and cases arising before USCIS/Directors/AAO are qualitatively differentthan those before EOIR: IJ’s/BIA or ALJ’s/OCAHO.]http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm before the BIA.http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm before IJ‘s.28 CFR Part 68http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title28/28cfr68_main_02.tplRules of Practice and Procedure for Administrative Hearings Before Administrative Law Judgesin OCAHO Cases Involving Allegations of Unlawful Employment of Aliens, UnfairImmigration-Related Employment Practices and Document Fraud Cases; or IMBRA informationdissemination violations. [USCIS has MOA’s with DOJ-CRT’s OSC and also with ICE thatwould govern most, if not all, referrals to OCAHO via one of its partners. IMBRA violationreferrals are as yet unclear.](5) Discipline of attorneys and representatives. The Board shall determine whether anyorganization or individual desiring to represent aliens in immigration proceedings meets therequirements as set forth in §1292.2 of this chapter. It shall also determine whether anyorganization desiring representation is of a kind described in §1001.1(j) of this chapter, and shallregulate the conduct of attorneys, representatives of organizations, and others who appear in arepresentative capacity before the Board or the Service or any immigration judge.A USCIS Practitioner Discipline rule is currently in a review and comment process and has beenpublished in the Federal Register. Comments have been plentiful and are being digested.(6) Identity, law enforcement, or security investigations or examinations. (i) The Board shall notissue a decision affirming or granting to an alien an immigration status, relief or protection fromremoval, or other immigration benefit, as provided in 8 CFR 1003.47(b), that requirescompletion of identity, law enforcement, or security investigations or examinations if:………..IJ‘s and the BIA have procedures in place to refer tentative grantees back to USCIS ServiceCenters for background checks before finalizing an award of benefits or relief from removal.(7) Finality of decision. The decision of the Board shall be final except in those cases reviewedby the Attorney General in accordance with paragraph (h) of this section. The Board mayreturn a case to the Service or an immigration judge for such further action as may beappropriate, without entering a final decision on the merits of the case.The above seems to be at odds with the actions taken in Matter of Lujan, supra and should haveoverridden the Board‘s interpretation and the procedures followed in that case. Page 9
  • 10. (e) Case management system. The Chairman shall establish a case management system to screenall cases and to manage the Boards caseload. Unless a case meets the standards for assignmentto a three-member panel under paragraph (e)(6) of this section, all cases shall be assigned to asingle Board member for disposition. The Chairman, under the supervision of the Director, shallbe responsible for the success of the case management system. The Chairman shall designate,from time to time, a screening panel comprising a sufficient number of Board members who areauthorized, acting alone, to adjudicate appeals as provided in this paragraph.(1) Initial screening. All cases shall be referred to the screening panel for review. Appealssubject to summary dismissal as provided in paragraph (d)(2) of this section should be promptlydismissed.(2) Miscellaneous dispositions. A single Board member may grant an unopposed motion or amotion to withdraw an appeal pending before the Board. In addition, a single Board membermay adjudicate a Service motion to remand any appeal from the decision of a Service officerwhere the Service requests that the matter be remanded to the Service for further consideration ofthe appellants arguments or evidence raised on appeal; a case where remand is required becauseof a defective or missing transcript; and other procedural or ministerial issues as provided by thecase management plan.(3) Merits review. In any case that has not been summarily dismissed, the case managementsystem shall arrange for the prompt completion of the record of proceedings and transcript, andthe issuance of a briefing schedule. A single Board member assigned under the case managementsystem shall determine the appeal on the merits as provided in paragraph (e)(4) or (e)(5) of thissection, unless the Board member determines that the case is appropriate for review and decisionby a three-member panel under the standards of paragraph (e)(6) of this section. The Boardmember may summarily dismiss an appeal after completion of the record of proceeding.(4) Affirmance without opinion.(i) The Board member to whom a case is assigned shall affirm the decision of the Service or theimmigration judge, without opinion, if the Board member determines that the result reached inthe decision under review was correct; that any errors in the decision under review wereharmless or nonmaterial; and that(A) The issues on appeal are squarely controlled by existing Board or federal court precedent anddo not involve the application of precedent to a novel factual situation; or(B) The factual and legal issues raised on appeal are not so substantial that the case warrants theissuance of a written opinion in the case.(ii) If the Board member determines that the decision should be affirmed without opinion, theBoard shall issue an order that reads as follows: ―The Board affirms, without opinion, the resultof the decision below. The decision below is, therefore, the final agency determination. See 8CFR 3.1(e)(4).‖ An order affirming without opinion, issued under authority of this provision,shall not include further explanation or reasoning. Such an order approves the result reached in Page 10
  • 11. the decision below; it does not necessarily imply approval of all of the reasoning of that decision,but does signify the Boards conclusion that any errors in the decision of the immigration judgeor the Service were harmless or nonmaterial.(5) Other decisions on the merits by single Board member. If the Board member to whom anappeal is assigned determines, upon consideration of the merits, that the decision is notappropriate for affirmance without opinion, the Board member shall issue a brief order affirming,modifying, or remanding the decision under review, unless the Board member designates thecase for decision by a three-member panel under paragraph (e)(6) of this section under thestandards of the case management plan. A single Board member may reverse the decision underreview if such reversal is plainly consistent with and required by intervening Board or judicialprecedent, by an intervening Act of Congress, or by an intervening final regulation. A motion toreconsider or to reopen a decision that was rendered by a single Board member may beadjudicated by that Board member unless the case is reassigned to a three-member panel asprovided under the standards of the case management plan.(6) Panel decisions. Cases may only be assigned for review by a three-member panel if the casepresents one of these circumstances:(i) The need to settle inconsistencies among the rulings of different immigration judges;(ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures;(iii) The need to review a decision by an immigration judge or the Service that is not inconformity with the law or with applicable precedents;(iv) The need to resolve a case or controversy of major national import;(v) The need to review a clearly erroneous factual determination by an immigration judge; or(vi) The need to reverse the decision of an immigration judge or the Service, other than a reversalunder §1003.1(e)(5).(7) Oral argument. When an appeal has been taken, a request for oral argument if desired shallbe included in the Notice of Appeal. A three-member panel or the Board en banc may hear oralargument, as a matter of discretion, at such date and time as is established under the Boards casemanagement plan. Oral argument shall be held at the offices of the Board unless the DeputyAttorney General or his designee authorizes oral argument to be held elsewhere. The Servicemay be represented before the Board by an officer of the Service designated by the Service. Nooral argument will be allowed in a case that is assigned for disposition by a single Boardmember.(8) Timeliness. As provided under the case management system, the Board shall promptly enterorders of summary dismissal, or other miscellaneous dispositions, in appropriate cases. In othercases, after completion of the record on appeal, including any briefs, motions, or othersubmissions on appeal, the Board member or panel to which the case is assigned shall issue a Page 11
  • 12. decision on the merits as soon as practicable, with a priority for cases or custody appealsinvolving detained aliens.(i) Except in exigent circumstances as determined by the Chairman, or as provided in paragraph(d)(6) of this section, the Board shall dispose of all appeals assigned to a single Board memberwithin 90 days of completion of the record on appeal, or within 180 days after an appeal isassigned to a three-member panel (including any additional opinion by a member of the panel).(ii) In exigent circumstances, the Chairman may grant an extension in particular cases of up to 60days as a matter of discretion. Except as provided in paragraph (e)(8)(iii) or (iv) of this section,in those cases where the panel is unable to issue a decision within the established time limits, asextended, the Chairman shall either assign the case to himself or a Vice-Chairman for finaldecision within 14 days or shall refer the case to the Attorney General for decision. If adissenting or concurring panel member fails to complete his or her opinion by the end of theextension period, the decision of the majority will be issued without the separate opinion.(iii) In rare circumstances, when an impending decision by the United States Supreme Court or aUnited States Court of Appeals, or impending Department regulatory amendments, or animpending en banc Board decision may substantially determine the outcome of a case or groupof cases pending before the Board, the Chairman may hold the case or cases until such decisionis rendered, temporarily suspending the time limits described in this paragraph (e)(8).(iv) For any case ready for adjudication as of September 25, 2002, and that has not beencompleted within the established time lines, the Chairman may, as a matter of discretion, grantan extension of up to 120 days.(v) The Chairman shall notify the Director of EOIR and the Attorney General if a Board memberconsistently fails to meet the assigned deadlines for the disposition of appeals, or otherwise failsto adhere to the standards of the case management system. The Chairman shall also prepare areport assessing the timeliness of the disposition of cases by each Board member on an annualbasis.(vi) The provisions of this paragraph (e)(8) establishing time limits for the adjudication ofappeals reflect an internal management directive in favor of timely dispositions, but do not affectthe validity of any decision issued by the Board and do not, and shall not be interpreted to, createany substantive or procedural rights enforceable before any immigration judge or the Board, orin any court of law or equity.(f) Service of Board decisions. The decision of the Board shall be in writing and copies thereofshall be transmitted by the Board to the Service and a copy shall be served upon the alien orparty affected as provided in part 292 [1292] of this chapter.(g) Decisions as precedents. Except as Board decisions may be modified or overruled by theBoard or the Attorney General, decisions of the Board, and decisions of the Attorney General,shall be binding on all officers and employees of the Department of Homeland Security orimmigration judges in the administration of the immigration laws of the United States. By Page 12
  • 13. majority vote of the permanent Board members, selected decisions of the Board rendered by athree-member panel or by the Board en banc may be designated to serve as precedents in allproceedings involving the same issue or issues. Selected decisions designated by the Board,decisions of the Attorney General, and decisions of the Secretary of Homeland Security to theextent authorized in paragraph (i) of this section, shall serve as precedents in all proceedingsinvolving the same issue or issues.(h) Referral of cases to the Attorney General.(1) The Board shall refer to the Attorney General for review of its decision all cases that:(i) The Attorney General directs the Board to refer to him.(ii) The Chairman or a majority of the Board believes should be referred to the Attorney Generalfor review.(iii) The Secretary of Homeland Security, or specific officials of the Department of HomelandSecurity designated by the Secretary with the concurrence of the Attorney General, refers to theAttorney General for review.(2) In any case the Attorney General decides, the Attorney Generals decision shall be stated inwriting and shall be transmitted to the Board or Secretary, as appropriate, for transmittal andservice as provided in paragraph (f) of this section.(i) Publication of Secretarys precedent decisions. The Secretary of Homeland Security, orspecific officials of the Department of Homeland Security designated by the Secretary with theconcurrence of the Attorney General, may file with the Attorney General decisions relating to theadministration of the immigration laws of the United States for publication as precedent in futureproceedings, and, upon approval of the Attorney General as to the lawfulness of such decision,the Director of the Executive Office for Immigration Review shall cause such decisions to bepublished in the same manner as decisions of the Board and the Attorney General.(j) Continuation of jurisdiction and procedure. The jurisdiction of, and procedures before, theBoard of Immigration Appeals in exclusion, deportation, removal, rescission, asylum-only, andany other proceedings, shall remain in effect as in effect on February 28, 2003, until theregulations in this chapter are further modified by the Attorney General. Where a decisionof an officer of the Immigration and Naturalization Service was, before March 1, 2003,appealable to the Board or to an immigration judge, or an application denied could be renewed inproceedings before an immigration judge, the same authority and procedures shall be followeduntil further modified by the Attorney General.―The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&NDec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Boardof Immigration Appeals and the Immigration Judges to continue to apply the previouslyestablished standards for reviewing motions to reopen based on claims of ineffective assistanceof counsel.‖ Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009). Page 13
  • 14. An announcement was made by the AAO Chief and the USCIS Director in an October 2010―Stakeholder Engagement‖ that the AAO is currently writing regulations for publication ―soon‖.It is clear that specific areas of concern have been identified and do exist regarding the workingrelationships between the Departments of Justice and Homeland Security as well as matterspertaining to proper jurisdiction as well as management and exercise of statutory authorities. It isalso clear that there are areas of concern as to communication between the various componentswithin each of these Departments. The A.G has directed the EOIR and BIA to promulgateregulations in order to codify and refine the Lozada requirements concerning claims ofineffective assistance of counsel. The Courts have further identified a need for those regulationsto be promulgated with specific additional processing concerns being addressed. The BIA hasfound an area within the existing regulations, in Lujan, that needs attention from a jointperspective between DOJ and DHS. The USCIS Director has directed the AAO Chief topromulgate a rule to streamline its appellate operations. That same rule was in the works in thepast but fell by the wayside without follow through. The Courts and the various Departmentsthrough their agencies and components have found other areas of concern that are not addressedin this essay but they should not be ignored either.Compare EOIR/BIA 8 CFR § 1003.1 above to USCIS/AAO 8 CFR § 103.3 below:8 CFR § 103.3 Denials, appeals, and precedent decisions.(a) Denials and appeals —(1) General —(i) Denial of application or petition. When a Service officer denies an application or petitionfiled under §103.2 of this part, the officer shall explain in writing the specific reasons for denial.If Form I–292 (a denial form including notification of the right of appeal) is used to notify theapplicant or petitioner, the duplicate of Form I–292 constitutes the denial order.(ii) Appealable decisions. Certain unfavorable decisions on applications, petitions, and othertypes of cases may be appealed. Decisions under the appellate jurisdiction of the Board ofImmigration Appeals (Board) are listed in §3.1(b) of this chapter. Decisions under the appellatejurisdiction of the Associate Commissioner, Examinations, are listed in §103.1(f)(2) of this part.(iii) Appeal —(A) Jurisdiction. When an unfavorable decision may be appealed, the official making thedecision shall state the appellate jurisdiction and shall furnish the appropriate appeal form.On AAO Jurisdiction:The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretaryof the United States Department of Homeland Security. See DHS Delegation Number 0150.1 Page 14
  • 15. (effective March 1, 2003). Delegations that pertain to the Secretary‘s powers under the INA arecovered at least in part by 8 CFR Part 100, but gaps remain to be filled.The AAO exercises appellate jurisdiction over the matters described in 8 CFR § 103.1(f)(3)(iii)(as in effect on February 28, 2003), with two exceptions: (1) petitions for approval of schoolsand the appeals of denials of such petitions are the responsibility of Immigration and CustomsEnforcement; and (2) applications for S nonimmigrant status are the responsibility of the Officeof Fraud Detection and National Security of U.S. Citizenship and Immigration Services.―The AAO does not have appellate jurisdiction over an appeal from the denial of an applicationfor adjustment of status under section 245(a) of the Immigration and Nationality Act (the Act). 8C.F.R. § 245.2(a)(5)(ii).‖3―The AAO has jurisdiction to review denials of applications for adjustment of status filed byaliens seeking the bona fide marriage exemption and aliens in U or T nonimmigrant status.Section 245(e), (1) and (m) of the Act, 8 U.S.C. § 1255(e), (I), (m); 8 C.F.R. §§ 245.l(c)(8)(viii),245.23(i), 245.24(0(2). The AAO has no jurisdiction to review denials of applications foradjustment of status under section 245(a) of the Act. 8 C.F.R. § 245.2(a)(5)(ii).‖ 4AAO has jurisdiction over Adjustment of Status of Diplomats under Sec. 13 of Act of 1957, and8 CFR § 245.3, Adjustment of A, E, or G to Nonimmigrant under 8 CFR 247.12(b).An ICE Official can determine if a bond has been breached but that determination is appealableto AAO. Previously, determinations on applications by schools (and revocation of thereof) forpermission to participate in the I-120 issuance and OPT/CPT determination authorities under theINA were under the AAU/AAO of Legacy INS but have shifted to ICE (as mentioned above).Powers Beyond AAO’s Authority:The AAO cannot exercise appellate jurisdiction over additional matters on its own volition, or atthe request of an applicant or petitioner. As a "statement of general . . . applicability and futureeffect designed to implement, interpret, or prescribe law or policy," the creation of appeal rightsfor any additional adjustment application denials meets the definition of an agency "rule" undersection 551 of the Administrative Procedure Act (APA) [5 USC § 551].The granting of appeal rights has a "substantive legal effect" because it is creating a newadministrative "right," and it involves an economic interest (the fee and costs). "If a rule createsrights, assigns duties, or imposes obligations, the basic tenor of which is not already outlined inthe law itself, then it is substantive." La Casa Del Convaleciente v. Sullivan, 965 F.2d 1175, 1178(1st Cir. 1992) All substantive or legislative rule making requires notice and comment in theFederal Register.―The AAO, like the Board of Immigration Appeals, is without authority to apply the doctrine ofequitable estoppel so as to preclude a component part of USCIS from undertaking a lawful3 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2010/Apr262010_01A1245.pdf4 Id. Page 15
  • 16. course of action that it is empowered to pursue by statute or regulation. See Matter ofHernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). Res judicata and estoppel are equitableforms of relief that are available only through the courts. The jurisdiction of the AAO is limitedto that authority specifically granted to it by the Secretary of the United States Department ofHomeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8C.F.R. § 103.1 (f)(3)(E)(iii) (as in effect on February 28, 2003) [and subsequent amendments,this includes N-600‘s]. Accordingly, the AAO has no authority to address the petitionersequitable estoppel and res judicata claims.‖5―Even if the applicants assertions regarding the delays in his fathers naturalization and his ownapplication were true, the AAO is without authority to apply the doctrine of equitable estoppel toapprove an application for derivative citizenship nunc pro tunc.‖6(B) Meaning of affected party. For purposes of this section and §§103.4 and 103.5 of this part,affected party (in addition to the Service) means the person or entity with legal standing in aproceeding. It does not include the beneficiary of a visa petition. An affected party may berepresented by an attorney or representative in accordance with part 292 of this chapter.(C) Record of proceeding. An appeal and any cross-appeal or briefs become part of the record ofproceeding.(D) Appeal filed by Service officer in case within jurisdiction of Board. If an appeal is filed by aService officer, a copy must be served on the affected party.(iv) Function of Administrative Appeals Unit (AAU). The AAU is the appellate body whichconsiders cases under the appellate jurisdiction of the Associate Commissioner, Examinations.(v) Summary dismissal. An officer to whom an appeal is taken shall summarily dismiss anyappeal when the party concerned fails to identify specifically any erroneous conclusion of law orstatement of fact for the appeal. The filing by an attorney or representative accredited under 8CFR 292.2(d) of an appeal which is summarily dismissed under this section may constitutefrivolous behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under§103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary action againstattorneys or representatives provided in 8 CFR 292.2 or in any other statute or regulation.(2) AAU appeals in other than special agricultural worker and legalization cases —(i) Filing appeal. The affected party shall file an appeal on Form I–290B. Except as otherwiseprovided in this chapter, the affected party must pay the fee required by §103.7 of this part. Theaffected party shall file the complete appeal including any supporting brief with the office wherethe unfavorable decision was made within 30 days after service of the decision.5 A non-precedent AAO Administrative Decision pertaining to an I-140, Immigrant Petition for Alien Worker, as a Member of the ProfessionsHolding an advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C.§1153(b)(2). See: Apr282009_01B5203.pdf on www.uscis.gov6 From the most recent non-precedent AAO Decision on an N-600 at: May192010_01E2309.pdf at www.uscis.gov Page 16
  • 17. (ii) Reviewing official. The official who made the unfavorable decision being appealed shallreview the appeal unless the affected party moves to a new jurisdiction. In that instance, theofficial who has jurisdiction over such a proceeding in that geographic location shall review it.(iii) Favorable action instead of forwarding appeal to AAU. The reviewing official shall decidewhether or not favorable action is warranted. Within 45 days of receipt of the appeal, thereviewing official may treat the appeal as a motion to reopen or reconsider and take favorableaction. However, that official is not precluded from reopening a proceeding or reconsidering adecision on his or her own motion under §103.5(a)(5)(i) of this part in order to make a newdecision favorable to the affected party after 45 days of receipt of the appeal.(iv) Forwarding appeal to AAU. If the reviewing official will not be taking favorable action ordecides favorable action is not warranted, that official shall promptly forward the appeal and therelated record of proceeding to the AAU in Washington, DC.(v) Improperly filed appeal —(A) Appeal filed by person or entity not entitled to file it —( 1 ) Rejection without refund of filing fee. An appeal filed by a person or entity not entitled tofile it must be rejected as improperly filed. In such a case, any filing fee the Service has acceptedwill not be refunded.( 2 ) Appeal by attorney or representative without proper Form G–28 —( i ) General. If an appeal is filed by an attorney or representative without a properly executedNotice of Entry of Appearance as Attorney or Representative (Form G–28) entitling that personto file the appeal, the appeal is considered improperly filed. In such a case, any filing fee theService has accepted will not be refunded regardless of the action taken.( ii ) When favorable action warranted. If the reviewing official decides favorable action iswarranted with respect to an otherwise properly filed appeal, that official shall ask the attorney orrepresentative to submit Form G–28 to the officials office within 15 days of the request. If FormG–28 is not submitted within the time allowed, the official may, on his or her own motion, under§103.5(a)(5)(i) of this part, make a new decision favorable to the affected party without notifyingthe attorney or representative.( iii ) When favorable action not warranted. If the reviewing official decides favorable action isnot warranted with respect to an otherwise properly filed appeal, that official shall ask theattorney or representative to submit Form G–28 directly to the AAU. The official shall alsoforward the appeal and the relating record of proceeding to the AAU. The appeal may beconsidered properly filed as of its original filing date if the attorney or representative submits aproperly executed Form G–28 entitling that person to file the appeal. Page 17
  • 18. (B) Untimely appeal —( 1 ) Rejection without refund of filing fee. An appeal which is not filed within the time allowedmust be rejected as improperly filed. In such a case, any filing fee the Service has accepted willnot be refunded.( 2 ) Untimely appeal treated as motion. If an untimely appeal meets the requirements of amotion to reopen as described in §103.5(a)(2) of this part or a motion to reconsider as describedin §103.5(a)(3) of this part, the appeal must be treated as a motion, and a decision must be madeon the merits of the case.(vi) Brief. The affected party may submit a brief with Form I–290B.(vii) Additional time to submit a brief. The affected party may make a written request to theAAU for additional time to submit a brief. The AAU may, for good cause shown, allow theaffected party additional time to submit one.(viii) Where to submit supporting brief if additional time is granted. If the AAU grants additionaltime, the affected party shall submit the brief directly to the AAU.(ix) Withdrawal of appeal. The affected party may withdraw the appeal, in writing, before adecision is made.(x) Decision on appeal. The decision must be in writing. A copy of the decision must be servedon the affected party and the attorney or representative of record, if any.(3) Denials and appeals of special agricultural worker and legalization applications andtermination of lawful temporary resident status under sections 210 and 245A.(i) Whenever an application for legalization or special agricultural worker status is denied or thestatus of a lawful temporary resident is terminated, the alien shall be given written notice settingforth the specific reasons for the denial on Form I–692, Notice of Denial. Form I–692 shall alsocontain advice to the applicant that he or she may appeal the decision and that such appeal mustbe taken within 30 days after service of the notification of decision accompanied by anyadditional new evidence, and a supporting brief if desired. The Form I–692 shall additionallyprovide a notice to the alien that if he or she fails to file an appeal from the decision, the Form I–692 will serve as a final notice of ineligibility.(ii) Form I–694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must beaccompanied by the appropriate fee. Form I–694 shall be furnished with the notice of denial atthe time of service on the alien.(iii) Upon receipt of an appeal, the administrative record will be forwarded to the AdministrativeAppeals Unit as provided by §103.1(f)(2) of this part for review and decision. The decision onthe appeal shall be in writing, and if the appeal is dismissed, shall include a final notice ofineligibility. A copy of the decision shall be served upon the applicant and his or her attorney or Page 18
  • 19. representative of record. No further administrative appeal shall lie from this decision, nor maythe application be filed or reopened before an immigration judge or the Board of ImmigrationAppeals during exclusion or deportation proceedings.(iv) Any appeal which is filed that:(A) Fails to state the reason for appeal;(B) Is filed solely on the basis of a denial for failure to file the application for adjustment ofstatus under section 210 or 245A in a timely manner; or(C) Is patently frivolous; will be summarily dismissed. An appeal received after the thirty (30)day period has tolled will not be accepted for processing.(4) Denials and appeal of Replenishment Agricultural Worker petitions and waivers andtermination of lawful temporary resident status under section 210A.(i) Whenever a petition for Replenishment Agricultural Worker status, or a request for a waiverincident to such filing, is denied in accordance with the provisions of part 210a of this title, thealien shall be given written notice setting forth the specific reasons for the denial on Form I–692,Notice of Denial. Form I–692 shall also contain advice to the alien that he or she may appeal thedecision and that such appeal must be taken within thirty (30) days after service of thenotification of decision accompanied by any additional new evidence, and a supporting brief ifdesired. The Form I–692 shall additionally provide a notice to the alien that if he or she fails tofile an appeal from the decision, the Form I–692 shall serve as a final notice of ineligibility.(ii) Form I–694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must beaccompanied by the appropriate fee. Form I–694 shall be furnished with the notice of denial atthe time of service on the alien.(iii) Upon receipt of an appeal, the administrative record will be forwarded to the AdministrativeAppeals Unit as provided by §103.1(f)(2) of this part for review and decision. The decision onthe appeal shall be in writing, and if the appeal is dismissed, shall include a final notice ofineligibility. A copy of the decision shall be served upon the petitioner and his or her attorney orrepresentative of record. No further administrative appeal shall lie from this decision, nor maythe petition be filed or reopened before an immigration judge or the Board of ImmigrationAppeals during exclusion or deportation proceedings.(iv) Any appeal which is filed that: Fails to state the reason for the appeal; is filed solely on thebasis of a denial for failure to file the petition for adjustment of status under part 210a of this titlein a timely manner; or is patently frivolous, will be summarily dismissed. An appeal receivedafter the thirty (30) day period has tolled will not be accepted for processing. Page 19
  • 20. (b) Oral argument regarding appeal before AAU —(1) Request. If the affected party desires oral argument, the affected party must explain in writingspecifically why oral argument is necessary. For such a request to be considered, it must besubmitted within the time allowed for meeting other requirements.(2) Decision about oral argument. The Service has sole authority to grant or deny a request fororal argument. Upon approval of a request for oral argument, the AAU shall set the time, date,place, and conditions of oral argument.(c) Service precedent decisions. The Secretary of Homeland Security, or specific officials of theDepartment of Homeland Security designated by the Secretary with the concurrence of theAttorney General, may file with the Attorney General decisions relating to the administration ofthe immigration laws of the United States for publication as precedent in future proceedings, andupon approval of the Attorney General as to the lawfulness of such decision, the Director of theExecutive Office for Immigration Review shall cause such decisions to be published in the samemanner as decisions of the Board and the Attorney General. In addition to Attorney General andBoard decisions referred to in §1003.1(g) of chapter V, designated Service decisions are toserve as precedents in all proceedings involving the same issue(s). Except as these decisions maybe modified or overruled by later precedent decisions, they are binding on all Service employeesin the administration of the Act. Precedent decisions must be published and made available to thepublic as described in §103.9(a) of this part.While the AAO has tried to confine itself to the ―appeals‖ regulations at 8 CFR § 103.3, and the―motion‖ regulations at 8 CFR § 103.5, of particular use in its decisions, AAO also reliesliberally upon 8 CFR § 103.2 ―Applications, petitions, and other documents‖ and 8 CFR § 103.4―Certifications‖. Also, there are benefit petition and application specific regulations thatcannot be ignored (more to follow). In addition to the regulations used by USCIS to adjudicatecases, other regulations and Policies specific to sister DHS agencies have some interplay as well.CBP’s 8 CFR § 238.1 [same as § 1238.1] Proceedings under section 238(b) of the Act.(a) Definitions. As used in this part the term:Deciding Service officer means a district director, chief patrol agent, or another immigrationofficer designated by a district director, chief patrol agent, the Deputy Executive AssociateCommissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs, solong as that person is not the same person as the Issuing Service Officer.Issuing Service officer means any Service officer listed in §1239.1 of this chapter as authorizedto issue notices to appear.(b) Preliminary consideration and Notice of Intent to Issue a Final Administrative DeportationOrder; commencement of proceedings — Page 20
  • 21. (1) Basis of Service charge. An issuing Service officer shall cause to be served upon an alien aForm I–851, Notice of Intent to Issue a Final Administrative Deportation Order (Notice ofIntent), if the officer is satisfied that there is sufficient evidence, based upon questioning of thealien by an immigration officer and upon any other evidence obtained, to support a finding thatthe individual:(i) Is an alien;(ii) Has not been lawfully admitted for permanent residence, or has conditional permanentresident status under section 216 of the Act;(iii) Has been convicted (as defined in section 101(a)(48) of the Act and as demonstrated by anyof the documents or records listed in §1003.41 of this chapter) of an aggravated felony and suchconviction has become final; and(iv) Is deportable under section 237(a)(2)(A)(iii) of the Act, including an alien who has neitherbeen admitted nor paroled, but who is conclusively presumed deportable under section237(a)(2)(A)(iii) by operation of section 238(c) of the Act (―Presumption of Deportability‖).(2) Notice.(i) Removal proceedings under section 238(b) of the Act shall commence upon personal serviceof the Notice of Intent upon the alien, as prescribed by §§103.5a(a)(2) and 103.5a(c)(2) of 8 CFRchapter I. The Notice of Intent shall set forth the preliminary determinations and inform the alienof the Services intent to issue a Form I–851A, Final Administrative Removal Order, without ahearing before an immigration judge. The Notice of Intent shall constitute the chargingdocument. The Notice of Intent shall include allegations of fact and conclusions of law. It shalladvise that the alien: has the privilege of being represented, at no expense to the government, bycounsel of the aliens choosing, as long as counsel is authorized to practice in removalproceedings; may request withholding of removal to a particular country if he or she fearspersecution or torture in that country; may inspect the evidence supporting the Notice of Intent;may rebut the charges within 10 calendar days after service of such Notice (or 13 calendar daysif service of the Notice was by mail).(ii) The Notice of Intent also shall advise the alien that he or she may designate in writing, withinthe rebuttal period, the country to which he or she chooses to be deported in accordance withsection 241 of the Act, in the event that a Final Administrative Removal Order is issued, and thatthe Service will honor such designation only to the extent permitted under the terms, limitations,and conditions of section 241 of the Act.(iii) The Service must determine that the person served with the Notice of Intent is the personnamed on the notice.(iv) The Service shall provide the alien with a list of available free legal services programsqualified under 8 CFR part 1003 and organizations recognized pursuant to 8 CFR part 1292,located within the district or sector where the Notice of Intent is issued. Page 21
  • 22. (v) The Service must either provide the alien with a written translation of the Notice of Intent orexplain the contents of the Notice of Intent to the alien in the aliens native language or in alanguage that the alien understands.(c) Aliens response —(1) Time for response. The alien will have 10 calendar days from service of the Notice of Intentor 13 calendar days if service is by mail, to file a response to the Notice of Intent. In theresponse, the alien may: designate his or her choice of country for removal; submit a writtenresponse rebutting the allegations supporting the charge and/or requesting the opportunity toreview the Governments evidence; and/or submit a statement indicating an intention to requestwithholding of removal under 8 CFR 1208.16 of this chapter, and/or request in writing anextension of time for response, stating the specific reasons why such an extension is necessary.(2) Nature of rebuttal or request to review evidence.(i) If an alien chooses to rebut the allegations contained in the Notice of Intent, the aliens writtenresponse must indicate which finding(s) are being challenged and should be accompanied byaffidavit(s), documentary information, or other specific evidence supporting the challenge.(ii) If an aliens written response requests the opportunity to review the Governments evidence,the Service shall serve the alien with a copy of the evidence in the record of proceeding uponwhich the Service is relying to support the charge. The alien may, within 10 calendar daysfollowing service of the Governments evidence (13 calendar days if service is by mail), furnish afinal response in accordance with paragraph (c)(1) of this section. If the aliens final response is arebuttal of the allegations, such a final response should be accompanied by affidavit(s),documentary information, or other specific evidence supporting the challenge.(d) Determination by deciding Service officer —(1) No response submitted or concession of deportability. If the deciding Service officer does notreceive a timely response and the evidence in the record of proceeding establishes deportabilityby clear, convincing, and unequivocal evidence, or if the alien concedes deportability, then thedeciding Service officer shall issue and cause to be served upon the alien a Final AdministrativeRemoval Order that states the reasons for the deportation decision. The alien may, in writing,waive the 14-day waiting period before execution of the final order of removal provided in aparagraph (f) of this section.(2) Response submitted —(i) Insufficient rebuttal; no genuine issue of material fact. If the alien timely submits a rebuttal tothe allegations, but the deciding Service officer finds that deportability is established by clear,convincing, and unequivocal evidence in the record of proceeding, the deciding Service officershall issue and cause to be served upon the alien a Final Administrative Removal Order thatstates the reasons for the decision of deportability. Page 22
  • 23. (ii) Additional evidence required.(A) If the deciding Service officer finds that the record of proceeding, including the aliens timelyrebuttal, raises a genuine issue of material fact regarding the preliminary findings, the decidingService officer may either obtain additional evidence from any source, including the alien, orcause to be issued a notice to appear to initiate removal proceedings under section 240 of theAct. The deciding Service officer may also obtain additional evidence from any source,including the alien, if the deciding Service officer deems that such additional evidence may aidthe officer in the rendering of a decision.(B) If the deciding Service officer considers additional evidence from a source other than thealien, that evidence shall be made a part of the record of proceeding, and shall be provided to thealien. If the alien elects to submit a response to such additional evidence, such response must befiled with the Service within 10 calendar days of service of the additional evidence (or 13calendar days if service is by mail). If the deciding Service officer finds, after considering alladditional evidence, that deportability is established by clear, convincing, and unequivocalevidence in the record of proceeding, the deciding Service officer shall issue and cause to beserved upon the alien a Final Administrative Removal Order that states the reasons for thedecision of deportability.(iii) Conversion to proceedings under section 240 of the Act. If the deciding Service officer findsthat the alien is not amenable to removal under section 238 of the Act, the deciding Serviceofficer shall terminate the expedited proceedings under section 238 of the Act and shall, whereappropriate, cause to be issued a notice to appear for the purpose of initiating removalproceedings before an immigration judge under section 240 of the Act.(3) Termination of proceedings by deciding Service officer. Only the deciding Service officermay terminate proceedings under section 238 of the Act, in accordance with this section.(e) Proceedings commenced under section 240 of the Act. In any proceeding commenced undersection 240 of the Act which is based on deportability under section 237 of the Act, if it appearsthat the respondent alien is subject to removal pursuant to section 238 of the Act, theimmigration judge may, upon the Services request, terminate the case and, upon suchtermination, the Service may commence administrative proceedings under section 238 of theAct. However, in the absence of any such request, the immigration judge shall complete theproceeding commenced under section 240 of the Act.(f) Executing final removal order of deciding Service officer —(1) Time of execution. Upon the issuance of a Final Administrative Removal Order, the Serviceshall issue a Warrant of Removal in accordance with §1241.2 of this chapter; such warrant shallbe executed no sooner than 14 calendar days after the date the Final Administrative RemovalOrder is issued, unless the alien knowingly, voluntarily, and in writing waives the 14-day period. Page 23
  • 24. (2) Country to which alien is to be removed. The deciding Service officer shall designate thecountry of removal in the manner prescribed by section 241 of the Act.(3) Withholding of removal. If the alien has requested withholding of removal under §1208.16 ofthis chapter, the deciding officer shall, upon issuance of a Final Administrative Removal Order,immediately refer the aliens case to an asylum officer to conduct a reasonable fear determinationin accordance with §1208.31 of this chapter.(g) Arrest and detention. At the time of issuance of a Notice of Intent or at any time thereafterand up to the time the alien becomes the subject of a Warrant of Removal, the alien may bearrested and taken into custody under the authority of a Warrant of Arrest issued by an officerlisted in §287.5(e)(2) of 8 CFR chapter I. The decision of the Service concerning custody orbond shall not be administratively appealable during proceedings initiated under section 238 ofthe Act and this part.(h) Record of proceeding. The Service shall maintain a record of proceeding for judicial reviewof the Final Administrative Removal Order sought by any petition for review. The record ofproceeding shall include, but not necessarily be limited to: the charging document (Notice ofIntent); the Final Administrative Removal Order (including any supplemental memorandum ofdecision); the aliens response, if any; all evidence in support of the charge; and any admissibleevidence, briefs, or documents submitted by either party respecting deportability. The executedduplicate of the Notice of Intent in the record of proceedings shall be retained as evidence thatthe individual upon whom the notice for the proceeding was served was, in fact, the alien namedin the notice.§ 244.10 Decision by the director or Administrative Appeals Unit (AAU).(a) Temporary treatment benefits. The director shall grant temporary treatment benefits to theapplicant if the applicant establishes prima facie eligibility for Temporary Protected Status inaccordance with §244.5.(b) Temporary Protected Status. Upon review of the evidence presented, the director mayapprove or deny the application for Temporary Protected Status in the exercise of discretion,consistent with the standards for eligibility in §§244.2, 244.3, and 244.4.(c) Denial by director. The decision of the director to deny Temporary Protected Status, a waiverof grounds of inadmissibility, or temporary treatment benefits shall be in writing served inperson or by mail to the aliens most recent address provided to the Service and shall state thereason(s) for the denial. Except as otherwise provided in this section, the alien shall be givenwritten notice of his or her right to appeal a decision denying Temporary Protected Status. Toexercise such right, the alien shall file a notice of appeal, Form I–290B, with the director whoissued the denial. If an appeal is filed, the administrative record shall be forwarded to the AAUfor review and decision, pursuant to authority delegated in §103.1(f)(2), except as otherwiseprovided in this section. Page 24
  • 25. (1) If the basis for the denial of the Temporary Protected Status constitutes a ground fordeportability or excludability which renders the alien ineligible for Temporary Protected Statusunder §244.4 or inadmissible under §244.3(c), the decision shall include a charging documentwhich sets forth such ground(s).(2) If such a charging document is issued, the alien shall not have the right to appeal thedirectors decision denying Temporary Protected Status as provided in this subsection. Thedecision shall also apprise the alien of his or her right to a de novo determination of his or hereligibility for Temporary Protected Status in deportation or exclusion proceedings pursuant to§§240.11 and 244.18.(d) Decision by AAU. The decision of the AAU shall be in writing served in person, or by mail tothe aliens most recent address provided to the Service, and, if the appeal is dismissed, thedecision shall state the reason(s) for the denial.(1) If the appeal is dismissed by the AAU under §240.18(b), the decision shall also apprise thealien of his or her right to a de novo determination of eligibility for Temporary Protected Statusin deportation or exclusion proceedings.(2) If the appeal is dismissed by the AAU, the director may issue a charging document if nocharging document is presently filed with the Immigration Court.(3) If a charging document has previously been filed or is pending before the Immigration Court,either party may move to recalendar the case after the decision by the AAU.(e) Grant of temporary treatment benefits.(1) Temporary treatment benefits shall be evidenced by the issuance of an employmentauthorization document. The alien shall be given, in English and in the language of thedesignated foreign state or a language that the alien understands, a notice of the registrationrequirements for Temporary Protected Status and a notice of the following benefits:(i) Temporary stay of deportation; and(ii) Temporary employment authorization.(2) Unless terminated under §244.13, temporary treatment benefits shall remain in effect until afinal decision has been made on the application for Temporary Protected Status.(f) Grant of temporary protected status.(1) The decision to grant Temporary Protected Status shall be evidenced by the issuance of analien registration document. For those aliens requesting employment authorization, theemployment authorization document will act as alien registration. Page 25
  • 26. (2) The alien shall be provided with a notice, in English and in the language of the designatedforeign state or a language that the alien understands, of the following benefits:(i) The alien shall not be deported while maintaining Temporary Protected Status;(ii) Employment authorization;(iii) The privilege to travel abroad with the prior consent of the director as provided in §244.15;(iv) For the purposes of adjustment of status under section 245 of the Act and change ofstatus under section 248 of the Act, the alien is considered as being in, and maintaining,lawful status as a nonimmigrant while the alien maintains Temporary Protected Status. NOTE: Matter of Sosa, 25 I&N Dec. 391 (BIA 2010) (1) A grant of Temporary Protected Status (―TPS‖) waives certain grounds of inadmissibility or deportability solely for the limited purpose of permitting an alien to remain and work temporarily in the United States for the period of time that TPS is effective. (2) It is not proper to terminate an alien‘s removal proceedings based on a grant of TPS.―The Immigration Judge determined that the grant of TPS rendered the respondent admissible, orsomehow eliminated the charge of inadmissibility, and, therefore, that she was not properlysubject to removal proceedings. The Act does not provide for such a result. There is nothing inthe language of the statute to indicate that a grant of TPS renders an alien admissible to theUnited States. According to section 244(c)(5) of the Act, ―Nothing in this section shall beconstrued as authorizing an alien to apply for admission to, or to be admitted to, the UnitedStates in order to apply for temporary protected status under this section.‖ Moreover, ―[d]uring aperiod in which an alien is granted temporary protected status . . . the alien shall not beconsidered to be permanently residing in the United States under color of law.‖ Section244(f)(1) of the Act (emphasis added). Thus, a grant of TPS does not affect an alien‘sadmissibility or inadmissibility for purposes of the Immigration and Nationality Act generally.‖At 392―As noted previously, the parties in this case initially agreed to administrative closure, which ―isused to temporarily remove a case from an Immigration Judge‘s calendar or from the Board‘sdocket.‖ Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996). This approach isconsistent with the nature of TPS. On remand, if the respondent does not want the proceedings tocontinue, she may request that her case be administratively closed, which requires agreement ofboth parties. Id. However, if the respondent does not make such a request, or does not agreeto administrative closure, the proceedings should continue, and the respondent should beprovided an opportunity to apply for any relief for which she may be eligible. See Matter ofQuintero, 18 I&N Dec. 348, 350 (BIA 1982). If the proceedings continue and the respondentdoes not apply, or is not eligible, for relief from removal, then an order of removal should beentered. See 8 C.F.R. § 1240.12 (2010). However, any such removal order could not be executed Page 26
  • 27. during the period in which the respondent‘s TPS status is valid. Section 244(a)(1)(A) of theAct.‖At 396(v) An alien eligible to apply for Temporary Protected Status under §244.2(f)(2), who wasprevented from filing a late application for registration because the regulations failed to providehim or her with this opportunity, will be considered to have been maintaining lawful status as anonimmigrant until the benefit is granted.(3) The benefits contained in the notice are the only benefits the alien is entitled to underTemporary Protected Status.(4) Such notice shall also advise the alien of the following:(i) The alien must remain eligible for Temporary Protected Status;(ii) The alien must register annually with the district office or service center having jurisdictionover the aliens place of residence; and(iii) The aliens failure to comply with paragraphs (f)(4) (i) or (ii) of this section will result in thewithdrawal of Temporary Protected Status, including work authorization granted under thisProgram, and may result in the aliens deportation from the United States.AAO also looks to the application and petition specific regulations such as 8 CFR §§ 103.5b,103.6, 204, 205, 212, 214, 301, 320, 322, 324, 338, 341, etc... One in particular is § 204.6 (m)which is a pre-existing regulation with prospective application to the newest USCIS applicationform, the I-924. Due to the change in processing required for the newest form, the controllingregulations are in need of updating. The following is a suggestion as to specific changes thatwould help create a fair and equitable framework for the initial decision-making andadministrative agency appellate review and motions pertaining to the form I-924.Suggested changes to 8 CFR § 204.6(m): Regional Center Regulations.[(m)(1) has no change, (2) has a minor edit, and (3) has a series of edits andadds one new clause](m) Requirements for Regional Centers…….(1) Scope [No Changes](2) Number of immigrant visas allocated. The annual allocation of the visas available under theImmigrant Investor Pilot Program is set at [CHANGE TO: ―3000‖] for each [DELETE: ―of thefive‖] fiscal year [DELETE: ―s‖ AND ADD: ―authorized‖] [DELETE: ―commencing on October1, 1993‖]. Page 27
  • 28. (3) Requirements for Regional Centers. Each Regional Center wishing to participate in theImmigrant Investor Pilot Program shall submit [ADD ―a form designated for the purpose,supported by,‖] a proposal to the [DELTE: ―Assistant Commissioner for Adjudications‖CHANGE TO: ―Service Center Director‖], which: (i) Clearly describes how the Regional Center focuses on a geographical region of the United States, and how it will promote economic growth through [DELETE: ―increased export sales,‖] improved regional productivity, job creation, and increased domestic capital investment; (ii) Provides in verifiable detail how jobs will be created indirectly [DELETE: ―through increased exports‖ AND ADD: ―through submission of a viable job creation prediction based on a credible comprehensive business plan(s)‖]; (iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the Regional Center, as well as a description of the promotional efforts taken and planned by the sponsors of the Regional Center; (iv) Contains a detailed prediction regarding the manner in which the Regional Center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the Regional Center; [DELETE: ―and‖] (v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, [ADD: ―sound economic‖ analyses of [DELETE: ―foreign and domestic‖] markets for the goods or services [DELETE: ―to be exported, and/or‖ AND ADD: ―and may include‖] multiplier tables [DELETE ―.‖ AND ADD: ―and;‖] [ADD: (vi) Explains in detail the method(s) and mechanism(s), and written instruments for investment and include standard business documentation anticipated to be submitted by individual investors with their individual petitions such as, but not limited to any draft/exemplar: operating agreement, partnership agreement, subscription agreement, stock purchase agreement, offering letter or memorandum, confidential private placement memorandum, and/or any similar offering made in writing to an immigrant investor through the Regional Center; any draft memorandum of understanding, interagency agreement, contract, letter of intent, advisory agreement, or similar agreement to be entered into with any other party, agency or organization to engage in activities on behalf of or in the name of the Regional Center.] Page 28
  • 29. [(m)(4) is a wholesale rewrite and significant expansion- DELETE ALL ANDREPLACE WITH:](4) Submission of proposals to participate in the Immigrant Investor Pilot Program.[An entity seeking approval to participate in the Immigrant Investor Pilot Program shall submit aform I-924, Application For Regional Center Under the Immigrant Investor Pilot Program, asper the form instructions with the specified fee and required initial evidence. Regional Centersthat have been approved by the Service Center Director will be eligible to participate in theImmigrant Investor Pilot Program. (i) Entity means: Any legal entity, including, but not limited to, a corporation, partnership, joint venture, governmental body, agency, public-private cooperative, or association, including an authorized principal, officer or employee of such entity, or a qualified individual acting directly in the interest thereof, upon submission of a properly executed form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. Such an entity must actually exist in accordance with applicable law including but not limited to: authorized by statute, governmental rule, regulation, ordinance, by-law, or constitutional or charter provision; incorporation; registration; licensure; or any legal means of filing for status afforded under law of the place of its existence within the United States, as defined in INA § 101 (a) (38). (ii) Form. The initial and/or amendment application form, supplemental form, associated instructions and current filing and fee information, as well as any updates to them will be available on the agency website or through the National Customer Service Center. (iii) Initial required evidence shall consist of proof of the entity‘s lawful authority to file as such entity such as, but not limited to: articles or certificate of incorporation, registration, license or a statement of authority under a charter, ordinance or any other lawful authority; and the proposal with the basic supporting documentation described in subparagraph (3) of this paragraph (m). (iv) Perfection of Application. Initial evidence beyond the bare minimum required by clause (4)(i), above, shall be subject to supplementation, modification, and change after submission through any USCIS issued Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) and the applicant‘s reply and/or rebuttal thereto. (v) Prima Facie Ineligibility. Initial submissions that appear not to be credible or viable, or based on flawed assumptions or information may be issued a NOID with an opportunity to rebut in the same manner as in (iv); or may be allowed to withdraw rather than be issued a formal denial. Provided that: If a finding of fraud is made, the Page 29
  • 30. application package is subject to referral to FDNS, ICE, IRS, OFAC, SEC, the Department of Justice, or any appropriate law enforcement agency for further investigation on any matter of concern. (vi) Effect of Withdrawal; Authorized Late Motion. Such a withdrawn application as anticipated in clause (v), above, shall be retained on hand and readily available to USCIS for a period of at least one year. Following authorized withdrawal, the same entity shall be afforded the opportunity to reopen and reconsider, and to further supplement the prior submission, within one year, by submitting an authorized late Motion accompanied by a form I-290B, Notice of Appeal or Motion with current fee as of the date of such filing, and a copy of the withdrawal acknowledgement authorizing such Motion. The filing of such a Motion will be afforded priority in processing based on the filing date of the prior application. Any Motion filed beyond one year from the date of authorized withdrawal will be summarily dismissed as untimely filed, without refund of fee. (vii) New Application. A completely new application apart and separate from any prior submission from the same entity may be filed based on a different investment scheme, vehicle, and/or premise by filing a new application with full fee. No processing priority will be given to such an application. Provided that: No evidence from the prior filing in possession of USCIS may, or will, be considered or incorporated into the new filing or considered by USCIS in its decision-making except as it may indicate evidence of willful fraud, misrepresentation, or concealment of a material fact.][(m)(5) is a wholesale rewrite and significant expansion DELETE all andREPLACE with:(5) Decision to Participate in the Immigrant Investor Pilot Program. (i) Prompt Decision on Initial Application. The Service Center Director shall notify the Regional Center applicant of his or her decision on the request for approval to participate in the Immigrant Investor Pilot Program under subparagraph (3) of this paragraph (m) and § 103.2 of this chapter. (A) If approved, the Approval Notice will describe the geographic area covered, the specific industries or types of businesses approved for investment and will make specific reference to the job projection and economic impact model and/or methodology that was submitted and reviewed for acceptability. The written Approval Notice will inform the Regional Center of its recordkeeping and reporting responsibilities and prohibition against making substantive material changes to previously submitted-and-reviewed standard written business Page 30
  • 31. documents and/or business plans and/or investment instruments anticipated to be submitted with individual investor petitions. (B) An applicant can withdraw an application in accordance with, and under the same conditions as described in subparagraph (4) of this paragraph (m). (C) If the application is denied, the applicant will be informed of the reason(s) for the denial and of the applicant‘s right of appeal to the Administrative Appeals Office (AAO). The Service Center Director will issue a detailed analysis of the law and facts of the case in support of its decision as contemplated by 5 USC § 557(c). The written Denial Notice will inform the applicant of the reasons for denial along with notification of motion and appeal rights. The procedures for appeal may be the same as those contained in § 103.3 of this chapter, or as modified herein, while motions may be treated as described in § 103.5 of this chapter, or as modified herein, as applicable. (ii) Prompt Decision on Amendment Application. The Service Center Director shall notify the Regional Center applicant of his or her decision on the request to amend or modify its participation in the Immigrant Investor Pilot Program under subparagraph (3) of this paragraph (m) and § 103.2 of this chapter. (A) If approved, the Approval Notice will add to, subtract from, or otherwise modify the prior Approval Notice and include the specific changes made by the amendment to the Regional Center‘s previously authorized participation in the Immigrant Investor Program. (B) An applicant can withdraw an application in accordance with, and under the same conditions as described in subparagraph (4) of this paragraph (m). (C) The Denial of a Proposed Amendment does not void the prior Approval Notice unless that participation is officially terminated pursuant to subparagraph (6) of this paragraph (m). If the amendment application is denied, the Amendment Denial Notice shall inform the applicant of the reason(s) for the denial and of the applicant‘s right of appeal to the Administrative Appeals Office (AAO). The Denial Notice shall be restricted to the amendment only, and will inform the applicant of motion and appeal rights. The Service Center Director will issue a detailed analysis of the law and facts of the case in support of its decision as contemplated by 5 USC § 557(c)7. The procedures for appeal may be the same as7 Paragraph following (c)(3): Page 31
  • 32. those contained in § 103.3 of this chapter, or as modified herein, while motions may be treated as described in § 103.5 of this chapter, or as modified herein, as applicable. (iii) Initial Agency Review of Appeal or Motion. The Service Center Director shall expeditiously and thoroughly review any appeal or motion of a denied Regional Center Initial or Amendment Application. If the applicant indicates that the brief and/or additional evidence will follow submission of the I-290B, the case may set be aside until the additional submission has been received or the allotted time has passed. The applicant is only allowed the time specified for a single submission of the brief and/or additional evidence. No extensions of time shall be granted by the Service Center Director in the context of initial review of an Appeal or Motion. (A) Summary Dismissal Option. If no brief or additional evidence has been submitted within the time allowed, the Service Center Director may summarily dismiss an unsupported and meritless Appeal or Motion in accordance with § 103.3 (a)(1)(v) of this chapter and restrict further review of that summarily dismissed case to renewed right of appeal only, with no further motion option; or make and issue a new decision based on the record as altered by any statement on the I-290B and any evidence initially submitted with the I-290B Motion and restrict further review of that re-denied case to renewed right of appeal only, with no further motion option; or certify the decision to the AAO in accordance with § 103.4 of this chapter when the case involves an unusually complex or novel issue of law or fact, or matter of first impression. Any such subsequently filed restricted appeal shall be immediately forwarded to the AAO, without the detailed review afforded to an initial submission for agency review. (B) Favorable Initial Decision on Appeal or Motion. The Service Center Director shall review any appeal or motion and if the case is approvable as submitted, shall approve the application and issue the decision; or certify the decision to the AAO in accordance with § 103.4 of this chapter when the case involves an unusually complex or novel issue of law or fact, or matter of first impression. (C) Unfavorable Initial Decision on Appeal. If the initial submission for review is denoted as an appeal but is not approvable as submitted, but cannot be summarilyThe record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial,recommended, and tentative decisions, are a part of the record and shall include a statement of-(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretionpresented on the record; and(B) the appropriate rule, order, sanction, relief, or denial thereof. Page 32
  • 33. dismissed, the appeal and complete application receipt file shall be forwarded to the AAO. (D) Unfavorable Initial Decision on Motion. If the initial submission for review is denoted as a motion but is not approvable as filed, the Service Center Director may either, dismiss the motion and restrict further review to renewed right of appeal only, with no further motion option; or certify the decision to the AAO in accordance with § 103.4 of this chapter when the case involves an unusually complex or novel issue of law or fact, or matter of first impression. The Service Center Director will issue a detailed analysis of the law and facts of the case in support of its decision but may incorporate the prior decision by reference. Any such subsequently filed restricted appeal shall be immediately forwarded to the AAO, without the detailed review afforded to an initial submission on review.(iv) AAO Review of Regional Center Application. Unless the Chief of the AdministrativeAppeals Office has specifically delegated authority to a different USCIS Officer than theOfficer who rendered the initial decision, who is a journeyman level adjudicator or higherat the Service Center to further develop a particular case, these procedures are reservedfor use by the reviewing Appeals Officer within AAO. Any such delegated ReviewingOfficer is prohibited from discussing the case with the initial deciding Officer. (A) Basic Review. The Reviewing Officer shall have the authority and discretion to review the application for Regional Center Designation and any evidence already on record, and either to affirm the findings and determination of the original adjudicating officer or to modify or re-determine the original decision in whole or in part. (B) Availability of Additional Records. The Reviewing Officer shall also have the discretion to review any administrative record which was created as part of the adjudication procedures as well as other USCIS files and reports, including VIBE, or outside sources of information and databases, including internet sources. (C) Request for evidence or testimony; independent inquiry or investigation in the course of an Administrative Appeal of a denial of a benefit under the INA. (1) The Appeals Officer or, Service Center Officer delegated specific authority by the Chief of the AAO, may request specific evidence, receive new evidence or interview the applicant and witnesses, in-person or telephonically, and take such additional testimony as may be deemed relevant to the applicants eligibility for Designation as a Regional Center Page 33
  • 34. and may consider any additional evidence that the applicant seeks to provide, within a reasonable period of time, before a decision is made. Any derogatory information, is subject to disclosure in accordance with § 103.2 (b) (16) of this chapter, or as hereafter amended, or modified in the interests of national security. (2) Any Appeals Officer or, Service Center Officer delegated specific authority by the Chief of the AAO, who is or may reasonably be expected to be involved in the decisional process who receives, or who makes or knowingly causes to be made, a communication ordinarily prohibited by this 5 USC § 557 shall place within the record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (v) standardized sworn statements will suffice as documentation of in-person communication; (vi) telephonic interviews that may be recorded with consent of both (or all) parties; and (vii) non-redacted e-mail directly pertaining to the case will be incorporated into the record. (D) Flexibility in standard of review. Based upon the complexity of the issues to be reviewed or determined, and upon the necessity of conducting further deliberation with respect to essential requirements, the Reviewing Officer may, in his or her discretion, conduct a full de novo8 review or may utilize an ad hoc9 review procedure, as he or she deems reasonable or in the interest of, or furtherance of justice10 and/or of economic benefit to the United States.8 Anew, afresh, from the beginning; without consideration of previous instances, proceedings or determinations en.wiktionary.org/wiki/de_novo9 Ad hoc is a Latin phrase which means "for this purpose". It generally signifies a solution designed for a specificproblem or task, non-generalizable, and which cannot be adapted to other purposes.en.wikipedia.org/wiki/Ad_hoc10 As a matter of discretion, but only when required by the existence of some compelling factor, consideration orcircumstance clearly demonstrating that the alternative inflexibility of rules would constitute or result in injusticeand would be likely reversed as ―arbitrary, capricious, an abuse of discretion, or otherwise not in accordance withthe spirit as well as the letter of the law. Patterned after: New York Criminal Procedure Law §§ 170.40 and 210.40and 5 USC § 706 (1) (A). Page 34
  • 35. (E) AAO Decision. The Appeals Officer shall follow established procedures inconsultation with fellow Appeals Officers and Supervisors. Any delegatedReviewing Officer shall coordinate any consultation or outside research throughthe AAO. AAO may consult with the USCIS Office of Chief Counsel, otherUSCIS or DHS components, the Library of Congress, the State Department, orany other Government Agency as authorized by superiors at USCIS inresearching legal questions and complex or novel issues concerning businesspractices, investments, economics, labor, or any other relevant subject. TheAppeals Officer or delegated Reviewing Officer may further develop the case andfacts thereof within a reasonable period of time as set by AAO and USCISmanagement. The Appeals Officer may approve or deny the benefit uponcompletion of development and review of the case, or remand the case forcompletion or further consideration. The written decision will reflect the grant ordenial of the benefit, or action required on remand, with specificity. The leastdesirable option is to remand for correction of USCIS procedural or substantiveerrors. (1) AAO Approval of the Benefit. This may be in the form of a sustained appeal or motion. This may be the remand of an overturned recommended denial with instructions to approve, as specified in the written remand order, and notify the applicant of rights and responsibilities. This may be an affirmance of a recommended approval, with or without modification. (i) The AAO may either prepare an Approval Notice itself and remand it to the Service Center to issue, or remand to the Service Center to prepare and issue the Approval Notice as systems capabilities and staffing dictate to ensure prompt notification. (ii) The Approval Notice will describe the geographic area covered, the specific industries or types of businesses approved for investment and will make specific reference to the job projection and economic impact model and/or methodology that was submitted and reviewed for acceptability. (iii) The written Approval Notice will inform the Regional Center of its recordkeeping and reporting responsibilities as anticipated by subparagraph (6) of this paragraph (m) and prohibition against making substantive material changes to previously submitted-and- reviewed standard written business documents and/or business Page 35
  • 36. plans and/or investment instruments and/or mechanisms anticipated to be submitted with individual investor petitions.(2) AAO Denial of the Benefit. This may be in the form of a dismissedappeal or motion. This may be an affirmance of a recommended denial,with or without modification. This may be an overturned recommendedapproval. The AAO will issue a detailed analysis of the law and facts ofthe case in support of its decision. The denial will include the rights tosubmit a single optional motion to reopen and/or reconsider, or to submita new application, or to file for judicial review in accordance with 5 USC§ 706.(3) Remand to the Service Center Director. With the broad reviewauthority, powers and procedures afforded to the Appeals Officer ordelegated Reviewing Officer in this paragraph (m)(5)(iv), remands shouldbe limited to: (i) Remand with specific instructions, as described in (iv)(E)(1), or (ii) A procedural errors: Reversible error during a proceeding sufficiently harmful to justify reversing the judgment of the prior Officer, or (iii) A substantive error: (A) mistake, inadvertence, surprise, or excusable neglect; (B) newly discovered evidence which by due diligence could not have been discovered in time to avoid forwarding the case to AAO [such as late interfiling of mail]; it is appropriate for AAO to remand for a consideration of evidence by the Service Center Director in the first instance, (C) fraud, misrepresentation, or other misconduct of an adverse party (for referral to fraud investigation or OIG, if for employee misconduct); (D) a prior rule, whether, precedent, statute or regulation, upon which it is based has been reversed, modified, or otherwise vacated, or it is no longer equitable that the rule should have prospective application; or (E) any other reason in the interest, or furtherance, of justice that relieves appellant from the operation of the rule. Page 36
  • 37. (4) Consideration for Publication. Any decision, whether an Approval, Denial, or remand in which the case involves an unusually complex or novel issue of law or fact, or matter of first impression, may be referred to the appropriate parties in accordance with §§ 103.3 (c) and 103.9 (a) of this chapter. ](6) Termination of participation of Regional Centers. [No Changes.](7) Requirements for alien entrepreneurs. An alien seeking an immigrant visa as an alienentrepreneur under the Immigrant Investor Pilot Program must demonstrate that his or herqualifying investment is within a Regional Center approved pursuant to paragraph (m)(4) of thissection and that such investment will create jobs indirectly through [DELETE: ―revenuesgenerated from increased exports resulting from‖ AND ADD: ―investment in‖] the newcommercial enterprise. (i) [DELETE: ―Exports. For purposes of paragraph (m) of this section, the term ―exports‖ means services or goods which are produced directly or indirectly through revenues generated from a new commercial enterprise and which are transported out of the United States‖ AND ADD: ―Regional Center Affiliation. To establish affiliation, the petitioner shall include a copy of the Regional Center Approval Notice for the Regional Center. USCIS reserves the right to confirm any claimed affiliation by directly contacting the Regional Center.] (ii) Indirect job creation. To show that [ADD: any of the required] 10 [ADD: permanent full-time jobs,] or more[,] [DELETE: jobs] are actually created indirectly by the business, [DELETE: ―reasonable methodologies may be used. Such methodologies may include multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment.‖ AND ADD: ―the investor may ask USCIS to consult its own Regional Center Files as to the approved job creation methodology previously submitted by the Regional Center to verify any Approval Notice provided to the petitioner by the Regional Center that has been submitted as evidence in support of the petition. In the alternative, USCIS shall also accept a newly prepared Job Creation Model based on a previously submitted, vetted, and approved methodology for use by that Regional Center however, any newly submitted documentation shall have to withstand full scrutiny on its own merits.‖](8) Time for submission of petitions for classification as an alien entrepreneur under theImmigrant Investor Pilot Program. Commencing on October 1, 1993, petitions will be accepted Page 37
  • 38. for filing and adjudicated in accordance with the provisions of this section if the alienentrepreneur has invested or is actively in the process of investing within a Regional Centerwhich has been approved by [DELETE: ―the Service‖ AND ADD: ―USCIS‖] for participation inthe Pilot Program. [ADD: Such claimed affiliation shall be subject to verification by USCIS.](9) Effect of termination of approval of Regional Center to participate in the Immigrant InvestorPilot Program. Upon termination of approval of a Regional Center to participate in theImmigrant Investor Pilot Program, the director shall send a formal written notice to any alienwithin the Regional Center who has been granted lawful permanent residence on a conditionalbasis under the Pilot Program, and who has not yet removed the conditional basis of such lawfulpermanent residence, of the termination of the aliens permanent resident status, unless the aliencan establish continued eligibility for alien entrepreneur classification under section 203(b)(5) ofthe Act. [ADD: ―Investors with pending I-526 Petitions shall be notified of the termination of theRegional Center and the mechanisms available to them for re-filing, if necessary, and desired.‖] Page 38