Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL L...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL L...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL L...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL L...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL L...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL L...
Upcoming SlideShare
Loading in …5
×

A failure to submit evidence that precludes a material line of inquiry signed

316 views

Published on

Reviewing an important set of concepts from 1961 through March 27, 2015. S tudy this in order o improve your imigration case preparation and presentation.

Published in: News & Politics
  • Be the first to comment

  • Be the first to like this

A failure to submit evidence that precludes a material line of inquiry signed

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL LINE OF INQUIRY—WHY!? - 1 Submitted by: Joseph P. Whalen 238 Ontario Street, No. 6 Buffalo, NY 14207 (716) 604-4322 (cell) (716) 768-6506 (land-line) joseph.whalen774@gmail.com TO: OFFICE OF THE DIRECTOR U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) DEPARTMENT OF HOMELAND SECURITY (DHS) 20 Massachusetts Ave., NW, MS 2000 Washington, D.C. 20529-2000 FRIENDLY COMMENTS ON A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL LINE OF INQUIRY—WHY!? I. INTRODUCTION This sentence; “The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2 (b) (14)” appears in a helluva lot of administrative decisions from AAO and the BIA. As shown above, that sentence is drawn from a regulation, shown below. Ever wonder from where that sentiment was drawn? 8 C.F.R. § 103.2 Submission and adjudication of benefit requests. (b) Evidence and processing. …… (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 benefit request. Failure to appear for required fingerprinting or for a required interview, or to give required testimony, shall result in the denial of the related benefit request. The key phrase highlighted and underlined above was not created by the former I.N.S., nor its successor, USCIS, out of thin air. That means that it had to come from somewhere else, right?
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL LINE OF INQUIRY—WHY!? - 2 I suggest that we look at a key administrative precedent, namely Matter of S- and B-C-, 9 I&N Dec. 436 (A.G. 1961). In that case, it was Attorney General Robert F. Kennedy that presided. The holding from that case contained the seeds that eventually grew into the current regulation: (1) A misrepresentation under section 212(a) (19) of the Act is material if either (A) the alien is excludable on the true facts, or (B) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded. (2) The same test for determining materiality is applicable to misrepresentations involving identity, which are no longer to be accorded a special status. (3) Where it is shown that the alien's misrepresentation choked off a relevant line of inquiry which might have resulted in a proper determination of excludability, the alien has the burden of establishing the true facts and bears the risk that uncertainties resulting from his own obstruction of the inquiry may be resolved against him. Id. [With slight reformatting, underlining and highlighting added for emphasis.] II. “SHUT OFF” “CHOKED OFF” ”OBSTRUCTION” “PRECLUDES” The more you protest or refuse to put forth information, the more you look like you are trying to hide something. Most folks are not actually trying to hide anything but will more likely than not be perceived as such. Even knowing this simple truth, some people do it anyway. Why would someone do such a thing and make themselves look so guilty? Why? I am no immigration “guru” on this subject but, I am not without some personal experience either. I have encountered folks who simply fail to provide information because of ignorance of where to find it or how to obtain it. In those situations, I always tried to point them in the right direction with more detailed RFEs (requests for evidence). Other times it is simple laziness. I have also encountered plain old stubbornness. Those have usually been folks who got the greatest advice in the world from an unreliable or shady source like their cousin’s friend’s hairdresser or a notario. The last thing I have encountered which I personally feel is the worst is incompetent counsel. Sometimes counsel has declared themselves to be the preeminent expert
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL LINE OF INQUIRY—WHY!? - 3 on a subject and has pledged to fight the case to the Supreme Court (“Just stick with me kid and you cannot be denied” or maybe it is ‘I’m using you as my guinea pig without telling you about it’). Whatever the particulars are, these approaches do not work. When the government asks for something it is for a reason. The only times to resist a request for a certain piece of evidence is if that reason is not relevant to eligibility; or the evidence simply does not exist. In the first scenario, if the evidence is easily available, competent counsel will submit it under written protest with a clearly stated rationale for the disagreement. In the second scenario, there are more regulations that explain how to proceed with substitutions in a progression of steps. Since they are already spelled out in 8 C.F.R. §103.2, I am not including very much about them here. I will merely include one sample of language one might be likely to encounter. The following excerpt is from an AAO Dismissal of an EB-5 Regional Center Proposal1 Appeal which included a combined Notice of Intent to Dismiss and Derogatory Information, where the applicant entity, a Tennessee LLC, had been “dissolved” and barred from “doing business”. “The regulation at 8 C.F.R. § 103.2(b)(13)(i) provides: 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 benefit request may be summarily denied as abandoned, denied based on the record, or denied for both reasons .... “ (AAO JUL242014_01K1610.pdf) RC-Appeal Dismissed at p. 3. 1 In this case, it is referred to as a “proposal” because it pre-dated the required filing fee and use of the Form I-924. While the applicant entity did exist at time of filing (the only true prerequisite for filing is to exist as the legal entity that files for regional center designation); it must remain eligible through time of final adjudication (including appeal).
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL LINE OF INQUIRY—WHY!? - 4 III. “MATERIAL” “RELEVANT” and “TRUE FACTS” The key descriptors in the regulation and precedent, of the particular requested “evidence” are “material” and “relevant”. The desired and expected purpose and function of any evidence whether submitted proactively or requested particularly, is to ascertain the “true facts”. Is it not? I am betting on the answer being that “Yes! That is the purpose and function of evidence”. I have been around long enough to know that there is most likely someone out there who would disagree, let him or her right their own argument, I will not waste my time on such silliness. Anyway, we must consider next how we get from the beginning to the end. I find the analogy of that process being a fruitful journey that could be as simple a straight line or as complex as the string theory of the universe. IV. “LINE OF INQUIRY” [leading to an eligibility determination.] Regardless of the simplicity or complexity of the journey, it is probably becoming clearer to the reader that material and relevant evidence is used through a “line of inquiry” in order to ascertain the true facts as to eligibility for some immigration or nationality benefit. In this journey through a line of inquiry, or rather, investigation, USCIS is seeking the true facts. How about we call this process an inquisitorial adjudication since a search for the truth is the essence of that adjudicatory framework. I have written previously on this topic please see here (May 2014). USCIS generally relies upon the preponderance of the evidence standard. That standard is particularly amenable to the inquisitorial adjudicatory framework espoused by this writer. Very
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL LINE OF INQUIRY—WHY!? - 5 recently, the Ninth Circuit Court of Appeals issued a precedent in which it reversed itself from earlier holdings in four precedents. Those cases were determined to have been decided incorrectly, too restrictive, and having read too much into the controlling regulations. The Ninth Circuit en banc Court found that prior panels had improperly imposed an “impossible” standard, literally. “…………………an applicant for deferral of removal must demonstrate that it is more likely than not that he or she will be tortured if removed. In deciding whether the applicant has satisfied his or her burden, the IJ must consider all relevant evidence, including but not limited to the possibility of relocation within the country of removal. Section 1208.16(c)(2) does not place a burden on an applicant to demonstrate that relocation within the proposed country of removal is impossible because the IJ must consider all relevant evidence; no one factor is determinative. See § 1208.16(c)(3)(i)–(iv); Kamalthas, 251 F.3d at 1282. Nor do the regulations shift the burden to the government because they state that the applicant carries the overall burden of proof. To the extent that Hasan, Lemus-Galvan, Singh, and Perez-Ramirez conflict with the plain text of the regulations, they are hereby overruled.” Maldonado v. Holder, __F. 3d__(9th Cir. 2015) [No. 09-71491, March 27, 2015] at 18. This author reads the above excerpt as a reinforcement of the position that the burden of proof is on the evidence, itself. In an inquisitorial approach, the fact-finder needs to look at the evidence for its probative and/or collaborative value as well as its credibility. The foregoing simply means judging the veracity of that evidence and determining the suitable weight to be given to any one particular piece of evidence. Once all the pieces of the evidentiary puzzle have been put in their acceptable place, the adjudicator can make findings-of-fact. Once all of the individual findings have been made, they can be considered collectively. If taken together, the adjudicator is convinced that a claim is more- likely-than-not-true, then the applicant (or petitioner) will have met their burden of persuasion
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A FAILURE TO SUBMIT EVIDENCE THAT PRECLUDES A MATERIAL LINE OF INQUIRY—WHY!? - 6 which is the second and most critical part of their burden of proof. It is noted that the burden of production will have been met first or else an inquiry could not have reached this point. I have written previously on these closely connected topics, please see here (from January 2015) and here (from August 2012). V. CONCLUSION Why go into all of the above in the first place? If such line of inquiry is shut off, choked off, etc.., and a claim is denied, then it is the stubborn applicant or petition or counsel who is to blame for the outcome due to the risk they took in failing to submit required and/or requested evidence. In other words: “It’s your own damn fault you got denied!” Since these concepts and issues are far from new, practitioners had better learn about their importance. I would hope that they were taught such matters through either formal educational programs or at least the school of hard knocks (experience). This subject matter has mattered for immigration cases since before Bobby Kennedy’s 1961 Precedent Decision through last week (Maldonado (9th Cir. March 27, 2015)). Please, wake up and smell the relevance and significance. Thank you for reading this. Dated this 31st day of March, 2015. X /s/Joseph P. Whalen Digitally signed by Joseph P. Whalen DN: cn=Joseph P. Whalen, o, ou, email=joseph.whalen774@gmail.com, c=US Date: 2015.03.31 23:42:01 -04'00'

×