Where is the Burden Shifting Provision Regarding INA Benefits?


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Where is the Burden Shifting Provision Regarding INA Benefits?

  1. 1. Where is the Burden Shifting Provision Regarding INA Benefits? By Joseph P. Whalen (May 12, 2012)I have searched for the statute or regulation that provides the basis for the “burden-shifting” concept in the INA Benefits Context and cannot find it. Please show it tome. I am at a loss to locate any statutory or regulatory source. Instead, I can onlyfind interpretive guidance on this topic and that seems to have been misread or thereliance upon it seems to be misguided and/or misplaced. The primary source forthe misconception seems to be found by misreading case-law.Matter of Brantigan, 11 I. & N. Dec. (BIA 1966)1 held: In visa petition proceedings the burden of proof to establish eligibility for the benefit sought rests with the petitioner, and in the absence of proof of the legal termination of a U.S. citizen petitioners prior marriage, reliance on the presumption of validity accorded by California law to his subsequent ceremonial marriage in that State to beneficiary is not satisfactory evidence of the termination of his prior marriage and is insufficient by itself to sustain petitioners burden of proof of a valid marriage on which to accord beneficiary nonquota status. [Emphases added.]Many try to make the argument that a prima facie showing is sufficient to provefull eligibility or that it raises a rebuttable presumption of full eligibility whichshifts the burden of proof to the USCIS Adjudicator to refute or disprove thateligibility. In other words, some claim that merely making a minimal evidentiaryshowing creates a burden to disprove and places it on the Government. This is anincorrect reading.In Brantigan, the petitioner attempted to rely on a presumption accorded underState law as evidence to meet his burden of proof in the absence of any actualevidence. First, the Service and then the Board did not accept that assertion assufficient to overcome this lack of evidence to meet the petitioner’s burden ofproof. Making a prima facie showing or crossing an initial threshold merelykeeps the adjudication proceeding forward it does not necessarily result inapproval.1 http://www.justice.gov/eoir/vll/intdec/vol11/1553.pdf Page 1 of 6
  2. 2. I read the regulations for “extraordinary ability” visas to demand the submission ofa minimum amount of initial evidence in order to allow the adjudicator to considerwhether that evidence is sufficient to answer Congress’ overarching questions.The regulations are written such that the evidence must ultimately demonstrate: • that the alien has sustained national or international acclaim and • that his or her achievements have been recognized in the field of expertise and • a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.However, types of specific evidence are listed as possibilities for “initial evidence”.It then makes perfect sense that submission of the minimum “initial evidence”merely allows an alien to be considered further on the totality of that evidencewhen seeking answers to the underlying questions.Buletini v. INS, 860 F. Supp. 1222, 1231 (E.D. Mich. 1994)2 is especially notedfor the following blurb: “Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. §204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.”Buletini, supra at 1234.AILA’s Amicus Brief 3 asserted the following: “.... Assuming that the EB-1 category even authorizes or requires a “final merits determination,” we submit that the nature and scheme of the analysis articulated by Buletini most closely adheres to the plain meaning of the statute and regulations, and provides the best approach to achieve USCIS’s goals of consistent and transparent adjudication.” At p. 32 See the full text of the case at:http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=19942082860FSupp1222_11918.xml&docbase=CSLWAR2-1986-2006&SizeDisp=73 AILA InfoNet Doc. No. 11110261. (Posted 11/02/11) at: http://www.aila.org/content/default.aspx?docid=37498 Page 2 of 6
  3. 3. That assertion aside, Buletini was, as noted, the first such case to be reviewed byany court. Additionally, it was rendered by a single District Court Judge for abuseof discretion in the following manner rather than setting a precedent as to thefuture sole and exclusive framework for adjudication of that brand new visaclassification. Judge Gadola lacked authority to set any precedent. The Judge didpoint out that “discretion is governed by the situation and circumstances affectingeach individual case”. “There is no exact measure of what constitutes abuse of discretion. It is more than the substitution of the judgment of one tribunal for that of another. Judicial discretion is governed by the situation and circumstances affecting each individual case. Even where an appellate court has power to review the exercise of such discretion, the inquiry is confined to whether such situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances.”Buletini, supra at 1227.INA § 291. [8 U.S.C. 1361] BURDEN OF PROOFWhenever any person makes application for a visa or any other document requiredfor entry, or makes application for admission, or otherwise attempts to enter theUnited States, the burden of proof shall be upon such person to establish that he iseligible to receive such visa or such document, or is not inadmissible under anyprovision of this Act, and, if an alien, that he is entitled to the nonimmigrant;immigrant, special immigrant, immediate relative, or refugee status claimed, as thecase may be. If such person fails to establish to the satisfaction of the consularofficer that he is eligible to receive a visa or other document required for entry, novisa or other document required for entry shall be issued to such person, nor shallsuch person be admitted to the United States unless he establishes to thesatisfaction of the [* Secretary of Homeland Security or] Attorney General that heis not inadmissible under any provision of this Act. In any removal proceedingunder chapter 4 against any person, the burden of proof shall be upon such personto show the time, place, and manner of his entry into the United States, but inpresenting such proof he shall be entitled to the production of his visa or other Page 3 of 6
  4. 4. entry document, if any, and of any other documents and records, not considered bythe [*Secretary of Homeland Security or] Attorney General to be confidential,pertaining to such entry in the custody of the Service**. If such burden of proof isnot sustained, such person shall be presumed to be in the United States in violationof law. * The Homeland Security Act of 2002 (HSA) shifted the primary authority to administer the provisions of the INA inside the U.S. from the Attorney General to the Secretary of Homeland Security. Certain provisions are clearly within the sole purview of one or the other but a few are now shared. The Immigration and Naturalization Service was abolished by section 291(a) of Title 6, Domestic Security, upon completion of all transfers from the Immigration and Naturalization Service as provided for by chapter 1 of Title 6. For treatment of references to any agency, officer, or office, etc. the functions of which were transferred to the Department of Homeland Security (DHS), see sections 552(d) and 557 of Title 6. ** This reference to the Service now encompasses various agencies collectively and might be better read to mean “the Government”.8 CFR § 204.5 Petitions for employment-based immigrants.(h) Aliens with extraordinary ability. (1) An alien, or any person on behalf of the alien, may file an I–140 visa petition for classification under section 203(b)(1)(A) of the Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics. (2) Definition. As used in this section: Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. (3) Initial evidence. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time Page 4 of 6
  5. 5. achievement (that is, a major, international recognized award), or at leastthree of the following: (i) Documentation of the aliens receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (ii) Documentation of the aliens membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (iii) Published material about the alien in professional or major trade publications or other major media, relating to the aliens work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; (iv) Evidence of the aliens participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought; (v) Evidence of the aliens original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; (vi) Evidence of the aliens authorship of scholarly articles in the field, in professional or major trade publications or other major media; (vii) Evidence of the display of the aliens work in the field at artistic exhibitions or showcases; (viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or Page 5 of 6
  6. 6. (x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. (4) If the above standards do not readily apply to the beneficiarys occupation, the petitioner may submit comparable evidence to establish the beneficiarys eligibility. (5) No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.8 CFR § 103.2 Submission and adjudication of benefit requests.(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request. Page 6 of 6