USCIS Form M-188 is a form that is supposed to be attached to those Denial Decisions towhich it pertains. The M-188 pertai...
8 CFR § 103.2 Applications, petitions, and other documents.(b) Evidence and processing —       (13) Effect of failure to r...
AFM 21.2 Factors Common to the Adjudication of All Relative Visa Petitions.(g) Post-Adjudication Actions .       (2) Denia...
INA § 291 [8 U.S.C. 1361] - BURDEN OF PROOF in Title II-ImmigrationWhenever any person makes application for a visa or any...
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Uscis form m 188 and burdens of proof under the ina

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INA burden of proof and form M-188

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  • Hi, I have an indigent friend who had an I-130 petition denied due to abandonment; she had traveled to her family and was injured in the war in Yemen, her family became homeless and moved as temporary residents in Saudi Arabia. She came only on March 2015. The denial was sent while she was away on Aug 2015. First of all can she make motion to reopen, if yes, is it possible to be done by a friend, lawyer but not able to practice independently.
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  • @skylerannie stop trolling my slideshares--you will be removed and blocked
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  • Great presentation. Thanks for the info, you made it easy to understand. BTW, if anyone needs to fill out a “USCIS N-400 Form ”, I found a blank fillable form here: http://pdf.ac/6LAPJ. This site PDFfiller also has some tutorials on how to fill it out and a few related legal documents that you might find useful.
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  • You don't file one. It is an instruction sheet on filing a Motion Based on a Denial Due to Abandonment.
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  • how do i file form m-188 and or where can I obtain form m-188
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Uscis form m 188 and burdens of proof under the ina

  1. 1. USCIS Form M-188 is a form that is supposed to be attached to those Denial Decisions towhich it pertains. The M-188 pertains to certain applications and petitions that have been DeniedDue to Abandonment or Lack of Prosecution. Certain applications and petitions have no appealrights but are subject to Motions to Reopen and/or Reconsider.Denials Due to Abandonment or Lack of Prosecution are not allowed for certain applications orpetitions. For instance:  An N-600 may not be denied as a true abandonment because 8 CFR § 341.6 forbids it;  An I-130 may not be denied solely for abandonment because INA § 291 wherein the burden of proof is on the applicant and/or petitioner;  Under 8 CFR § 335.6, an N-400 applicant who fails to appear for interview may end up with the N-400 being Administratively Closed and eventually if the applicant does not request reopening of that application within one year from the date the application was closed, USCIS will consider that application to have been abandoned, and shall dismiss the application without further notice to the applicant;  Under 8 CFR§ 335.7, an N-400 applicant who fails to show up for a subsequent interview to provide required testimony or respond with requested evidence, the application will be adjudicated on the merits;  Under 8 CFR § 312.5, an N-400 applicant who flunked English and/or Civics fails to show up for the re-exam will be deemed to have failed and denied, at least on that ground.The substance of the Form M-188 is drawn from the following part of the regulations:8 CFR § 103.5 Reopening or reconsideration.(a) Motions to reopen or reconsider in other than special agricultural worker and legalizationcases……. (2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because: (i) The requested evidence was not material to the issue of eligibility; (ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or (iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Services request was sent, and the request did not go to the new address.M-188 and Burdens of Proof under the INA Page 1
  2. 2. 8 CFR § 103.2 Applications, petitions, and other documents.(b) Evidence and processing — (13) Effect of failure to respond to a request for evidence or a notice of intent to deny or to appear for interview or biometrics capture — (i) Failure to submit evidence or respond to a notice of intent to deny. If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the application or petition may be summarily denied as abandoned, denied based on the record, or denied for both reasons. If other requested material necessary to the processing and approval of a case, such as photographs, are not submitted by the required date, the application may be summarily denied as abandoned. (ii) Failure to appear for biometrics capture, interview or other required in- person process. Except as provided in 8 CFR 335.6, if USCIS requires an individual to appear for biometrics capture, an interview, or other required in- person process but the person does not appear, the application or petition shall be considered abandoned and denied unless by the appointment time USCIS has received a change of address or rescheduling request that the agency concludes warrants excusing the failure to appear. (14) Effect of request for decision. Where an applicant or petitioner does not submit all requested additional evidence and requests a decision based on the evidence already submitted, a decision shall be issued based on the record. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the application or petition. Failure to appear for required fingerprinting or for a required interview, or to give required testimony, shall result in the denial of the related application or petition. (15) Effect of withdrawal or denial due to abandonment. The USCIS acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under §103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new application or petition with a new fee. However, the priority or processing date of a withdrawn or abandoned application or petition may not be applied to a later application petition. Withdrawal or denial due to abandonment shall not itself affect the new proceeding; but the facts and circumstances surrounding the prior application or petition shall otherwise be material to the new application or petition.M-188 and Burdens of Proof under the INA Page 2
  3. 3. AFM 21.2 Factors Common to the Adjudication of All Relative Visa Petitions.(g) Post-Adjudication Actions . (2) Denials . A visa petition may not be denied as a matter of discretion or because the beneficiary is excludable. The only valid ground for denial is failure to establish the qualifying relationship as defined in the Act and interpreted through precedent decisions or because of ineligibility of the petitioner. Use Form I-292 to notify the petitioner of the decision and the right to appeal within 15 calendar days from the date of the notice (18 days if the notice is mailed). The appellate body (if any) to which the appeal is filed depends on the type of relative petition involved: [Note: In reality, USCIS and BIA allow a standard 30/33 days as matter of discretion.] · The appeal from a denial of a Form I-130 petition is made to the Board of Immigration Appeals (BIA) on Form EOIR-29. · The appeal from a denial of a Form I-360 filed by a widow(er) is made to the BIA on Form EOIR-29. Note Any appeal on a case where the BIA has appellate jurisdiction must be accepted and forwarded to the BIA, even if it is not timely filed. The BIA will decide whether to consider the case. · The appeal from a denial of a Form I-360 filed by a battered spouse is made to the Office of Administrative Appeals on Form I-290B. · The appeal from a denial of a Form I-600 or I-600A is made to the Office of Administrative Appeals. · The denial of a Form I-730 is not appealable. · Matter of Pearson , 13 I&N Dec. 152 (BIA 1969) . Failure to prosecute is a valid ground for denial when petitioner fails to comply with a reasonable request to appear for interview. [This old guidance is in conflict with current policy and practice, may have been officially overruled but remains in the AFM anyway. Do not trust it.]M-188 and Burdens of Proof under the INA Page 3
  4. 4. INA § 291 [8 U.S.C. 1361] - BURDEN OF PROOF in Title II-ImmigrationWhenever any person makes application for a visa or any other document required forentry, or makes application for admission, or otherwise attempts to enter the United States, theburden of proof shall be upon such person to establish that he is eligible to receive such visaor such document, or is not inadmissible under any provision of this Act, and, if an alien, that heis entitled to the nonimmigrant; immigrant, special immigrant, immediate relative, or refugeestatus claimed, as the case may be. If such person fails to establish to the satisfaction of theconsular officer that he is eligible to receive a visa or other document required for entry, no visaor other document required for entry shall be issued to such person, nor shall such person beadmitted to the United States unless he establishes to the satisfaction of the Attorney General thathe is not inadmissible under any provision of this Act. In any removal proceeding under chapter4 against any person, the burden of proof shall be upon such person to show the time, place, andmanner of his entry into the United States, but in presenting such proof he shall be entitled to theproduction of his visa or other entry document, if any, and of any other documents and records,not considered by the Attorney General to be confidential, pertaining to such entry in the custodyof the Service. If such burden of proof is not sustained, such person shall be presumed to be inthe United States in violation of law.INA § 318 [8 U.S.C. 1429] - PREREQUISITES TO NATURALIZATION; BURDEN OFPROOF in Title III Nationality And NaturalizationExcept as otherwise provided in this title, no person shall be naturalized unless he has beenlawfully admitted to the United States for permanent residence in accordance with all applicableprovisions of this Act. The burden of proof shall be upon such person to show that he entered theUnited States lawfully, and the time, place, and manner of such entry into the United States, butin presenting such proof he shall be entitled to the production of his immigrant visa, if any, or ofother entry document, if any, and of any other documents and records, not considered by theAttorney General to be confidential, pertaining to such entry, in the custody of the Service.Notwithstanding the provisions of section 405(b) , and except as provided in sections 328 and329 no person shall be naturalized against whom there is outstanding a final finding ofdeportability pursuant to a warrant of arrest issued under the provisions of this or any other Act;and no application for naturalization shall be considered by the Attorney General if there ispending against the applicant a removal proceeding pursuant to a warrant of arrest issued underthe provisions of this or any other Act: Provided, That the findings of the Attorney General interminating removal proceedings o r in canceling the removal of an alien pursuant to theprovisions of this Act, shall not be deemed binding in any way upon the Attorney General withrespect to the question of whether such person has established his eligibility for naturalization asrequired by this title.M-188 and Burdens of Proof under the INA Page 4

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