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A Specific Allegation of Error in Law or Fact
By Joseph P. Whalen (Sunday, Septembe... Page 2 of 9
of relief from removal. It is at this point that the very nature of the proceeding ... Page 3 of 9
(D) Appeal filed by Service officer in case within jurisdiction of1
Board. If an ap... Page 4 of 9
(2) Appeal by attorney or representative without proper1
Form G-28—2
(i) General. I... Page 5 of 9
(ix) Withdrawal of appeal. The affected party may withdraw the appeal, in1
writing,... Page 6 of 9
The instructions for USCIS Form I-290B, Notice of Appeal or Motion, require that1
t... Page 7 of 9
to AAO completely de novo in all respects. The few “technically” faceless paper-bas... Page 8 of 9
The petitioner's ability to pay the proffered wage is an essential element in1
eval... Page 9 of 9
See 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agenc...
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A Specific Allegation of Error in Law or Fact


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A Specific Allegation of Error in Law or Fact

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A Specific Allegation of Error in Law or Fact

  1. 1. Page 1 of 9 A Specific Allegation of Error in Law or Fact By Joseph P. Whalen (Sunday, September 20, 2015) An administrative appeal might work slightly differently than its judicial cousin1 but both types require a specific allegation of error in law or fact. Vague2 assertions and overly generalized statements will not suffice because they lack the3 required specificity. These different types of alleged errors are of distinctive characters4 and natures; and are therefore, evaluated under different standards of review. The two5 principle administrative appellate bodies in immigration proceedings are the Board of6 Immigration Appeals (BIA or Board) and the Administrative Appeals Office (AAO). There7 are major differences between these two immigration authorities.8 The BIA mainly hears appeals arising from adversarial Removal Proceedings9 which can have harsh punitive consequences including continued confinement and10 expulsion from the United States. The AAO, on the other hand, hears appeals from11 inquisitorial Benefits Determination Adjudications. While AAO decisions do not12 involve the same harsh punitive consequences that can flow from Removal Proceedings,13 the benefits which can be denied rise to the highest prize under the INA – U.S. citizenship.14 These two distinctive types of adjudicatory frameworks must be fully understood in order15 to effectively approach them.16 Adversarial proceedings pit one side against the other in a fight. Inquisitorial17 adjudications involve a search for the truth. The adversaries consist of ICE and the alien.18 ICE Counsel seeks to prove 1.) alienage, and 2.) removability. The alien, alone or through19 counsel, might fight alienage, removability, or both. However, in the vast majority of20 Removal Proceedings, the alien respondent will admit the charges and seek some form21
  2. 2. Page 2 of 9 of relief from removal. It is at this point that the very nature of the proceeding transforms1 from adversarial to inquisitorial. When one seeks relief from removal, in the vast2 majority of cases, this means that they are applying for a benefit. There are a few such3 benefits that may only be bestowed by an Immigration Judge just as there are some4 benefits that may only be bestowed by a DHS Immigration Officer, whether with ICE,5 CBP, or mostly USCIS. With the above basics in mind, let us have a look at DHS’6 controlling appeal regulations.7 8 C.F.R. §103.3 Denials, appeals, and precedent decisions.8 (a) Denials and appeals—9 (1) General—10 (i) Denial of application or petition. When a Service officer denies an11 application or petition filed under §103.2 of this part, the officer shall explain in12 writing the specific reasons for denial. If Form I-292 (a denial form including13 notification of the right of appeal) is used to notify the applicant or petitioner, the14 duplicate of Form I-292 constitutes the denial order.15 (ii) Appealable decisions. Certain unfavorable decisions on applications,16 petitions, and other types of cases may be appealed. Decisions under the appellate17 jurisdiction of the Board of Immigration Appeals (Board) are listed in §3.1(b) of18 this chapter. Decisions under the appellate jurisdiction of the Associate19 Commissioner, Examinations, are listed in §103.1(f)(2)1 of this part.20 (iii) Appeal—21 (A) Jurisdiction. When an unfavorable decision may be appealed,22 the official making the decision shall state the appellate jurisdiction and23 shall furnish the appropriate appeal form.24 (B) Meaning of affected party. For purposes of this section and25 §§103.4 and 103.5 of this part, affected party (in addition to the Service)26 means the person or entity with legal standing in a proceeding. It does not27 include the beneficiary of a visa petition. An affected party may be28 represented by an attorney or representative in accordance with part 29229 of this chapter.30 (C) Record of proceeding. An appeal and any cross-appeal or briefs31 become part of the record of proceeding.32 1 This section was repealed in 2003, and has not been amended or replaced. It is more useful to consult the USCIS website. Also, AAU has been renamed and is now known as AAO.
  3. 3. Page 3 of 9 (D) Appeal filed by Service officer in case within jurisdiction of1 Board. If an appeal is filed by a Service officer, a copy must be served on2 the affected party.3 (iv) Function of Administrative Appeals Unit (AAU). The AAU is the4 appellate body which considers cases under the appellate jurisdiction of the5 Associate Commissioner, Examinations.6 (v) Summary dismissal. An officer to whom an appeal is taken shall7 summarily dismiss any appeal when the party concerned fails to identify8 specifically any erroneous conclusion of law or statement of fact for the appeal. The9 filing by an attorney or representative accredited under 8 CFR 292.2(d) of an10 appeal which is summarily dismissed under this section may constitute frivolous11 behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under12 §103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary13 action against attorneys or representatives provided in 8 CFR 292.2 or in any other14 statute or regulation.15 (2) AAU appeals in other than special agricultural worker and legalization16 cases—17 (i) Filing appeal. The affected party must submit an appeal on Form I-18 290B. Except as otherwise provided in this chapter, the affected party must pay19 the fee required by §103.7 of this part. The affected party must submit the complete20 appeal including any supporting brief as indicated in the applicable form21 instructions within 30 days after service of the decision.22 (ii) Reviewing official. The official who made the unfavorable decision23 being appealed shall review the appeal unless the affected party moves to a new24 jurisdiction. In that instance, the official who has jurisdiction over such a25 proceeding in that geographic location shall review it.26 (iii) Favorable action instead of forwarding appeal to AAU. The reviewing27 official shall decide whether or not favorable action is warranted. Within 45 days28 of receipt of the appeal, the reviewing official may treat the appeal as a motion to29 reopen or reconsider and take favorable action. However, that official is not30 precluded from reopening a proceeding or reconsidering a decision on his or her31 own motion under §103.5(a)(5)(i) of this part in order to make a new decision32 favorable to the affected party after 45 days of receipt of the appeal.33 (iv) Forwarding appeal to AAU. If the reviewing official will not be34 taking favorable action or decides favorable action is not warranted, that35 official shall promptly forward the appeal and the related record of proceeding to36 the AAU in Washington, DC.37 (v) Improperly filed appeal—38 (A) Appeal filed by person or entity not entitled to file it—39 (1) Rejection without refund of filing fee. An appeal filed by40 a person or entity not entitled to file it must be rejected as41 improperly filed. In such a case, any filing fee the Service has42 accepted will not be refunded.43
  4. 4. Page 4 of 9 (2) Appeal by attorney or representative without proper1 Form G-28—2 (i) General. If an appeal is filed by an attorney or3 representative without a properly executed Notice of Entry4 of Appearance as Attorney or Representative (Form G-28)5 entitling that person to file the appeal, the appeal is6 considered improperly filed. In such a case, any filing fee the7 Service has accepted will not be refunded regardless of the8 action taken.9 (ii) When favorable action warranted. If the10 reviewing official decides favorable action is warranted with11 respect to an otherwise properly filed appeal, that official12 shall ask the attorney or representative to submit Form G-13 28 to the official's office within 15 days of the request. If14 Form G-28 is not submitted within the time allowed, the15 official may, on his or her own motion, under §103.5(a)(5)(i)16 of this part, make a new decision favorable to the affected17 party without notifying the attorney or representative.18 (iii) When favorable action not warranted. If the19 reviewing official decides favorable action is not warranted20 with respect to an otherwise properly filed appeal, that21 official shall ask the attorney or representative to submit22 Form G-28 directly to the AAU. The official shall also23 forward the appeal and the relating record of proceeding to24 the AAU. The appeal may be considered properly filed as of25 its original filing date if the attorney or representative26 submits a properly executed Form G-28 entitling that27 person to file the appeal.28 (B) Untimely appeal—29 (1) Rejection without refund of filing fee. An appeal which30 is not filed within the time allowed must be rejected as improperly31 filed. In such a case, any filing fee the Service has accepted will not32 be refunded.33 (2) Untimely appeal treated as motion. If an untimely34 appeal meets the requirements of a motion to reopen as described35 in §103.5(a)(2) of this part or a motion to reconsider as described36 in §103.5(a)(3) of this part, the appeal must be treated as a motion,37 and a decision must be made on the merits of the case.38 (vi) Brief. The affected party may submit a brief with Form I-290B.39 (vii) Additional time to submit a brief. The affected party may make a40 written request to the AAU for additional time to submit a brief. The41 AAU may, for good cause shown, allow the affected party additional time to submit42 one.43 (viii) Where to submit supporting brief if additional time is granted. If the44 AAU grants additional time, the affected party shall submit the brief directly to the45 AAU.46
  5. 5. Page 5 of 9 (ix) Withdrawal of appeal. The affected party may withdraw the appeal, in1 writing, before a decision is made.2 (x) Decision on appeal. The decision must be in writing. A copy of the3 decision must be served on the affected party and the attorney or representative of4 record, if any.5 * * * * *6 (b) Oral argument regarding appeal before AAU—7 (1) Request. If the affected party desires oral argument, the affected party must8 explain in writing specifically why oral argument is necessary. For such a9 request to be considered, it must be submitted within the time allowed for meeting other10 requirements.11 (2) Decision about oral argument. The Service has sole authority to grant or12 deny a request for oral argument. Upon approval of a request for oral argument, the AAU13 shall set the time, date, place, and conditions of oral argument.14 (c) Service precedent decisions. The Secretary of Homeland Security, or specific officials15 of the Department of Homeland Security designated by the Secretary with the concurrence of the16 Attorney General, may file with the Attorney General decisions relating to the administration of17 the immigration laws of the United States for publication as precedent in future proceedings, and18 upon approval of the Attorney General as to the lawfulness of such decision, the Director of the19 Executive Office for Immigration Review shall cause such decisions to be published in the same20 manner as decisions of the Board and the Attorney General. In addition to Attorney General and21 Board decisions referred to in §1003.1(g) of chapter V, designated Service decisions are to serve22 as precedents in all proceedings involving the same issue(s). Except as these decisions may be23 modified or overruled by later precedent decisions, they are binding on all Service employees in24 the administration of the Act. Precedent decisions must be published and made available to the25 public as described in 8 CFR 103.10(e).26 [31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11,27 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR28 20769, 20775, May 21, 1990; 55 FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832,29 Feb. 28, 2003; 76 FR 53781, Aug. 29, 2011]30 8 C.F.R. §103.2 Submission and adjudication of benefit requests.31 (a) Filing.32 (1) Preparation and submission. Every benefit request or other document33 submitted to DHS must be executed and filed in accordance with the form34 instructions, notwithstanding any provision of 8 CFR chapter 1 to the contrary, and35 such instructions are incorporated into the regulations requiring its submission.36 Each benefit request or other document must be filed with fee(s) as required by regulation.37 Benefit requests which require a person to submit biometric information must also be filed38 with the biometric service fee in 8 CFR 103.7(b)(1), for each individual who is required to39 provide biometrics. Filing fees and biometric service fees are non-refundable and, except40 as otherwise provided in this chapter I, must be paid when the benefit request is filed.41
  6. 6. Page 6 of 9 The instructions for USCIS Form I-290B, Notice of Appeal or Motion, require that1 the applicant “[p]rovide a statement that specifically identifies an erroneous conclusion2 of fact or law in the decision being appealed.” It is somewhat odd that the regulations do3 not simply state what the requirements are for an appeal. The regulations define the4 requirements in a backhanded fashion by stating what is appropriate for a summary5 dismissal which is: “any appeal when the party concerned fails to identify specifically any6 erroneous conclusion of law or statement of fact for the appeal.” Supra. The regulations7 concerning appeals are rather weak and of little use. They contain no information8 concerning the standards of review. AAO has assumed authority and defined its powers9 through case law, the Administrative Procedures Act (APA), and general legal principles.10 The BIA hears appeals from Removal Proceedings which are hearings that take11 place in Immigration Court and are presided over by an Immigration Judge (IJ). These12 proceedings involve face-to-face interactions between adversaries. The BIA has restricted13 its review authorities as to fact-finding. It reviews fact-finding for clear errors only. Legal14 interpretations are reviewed de novo, owing zero deference to such interpretations and15 conclusions drawn in the proceedings below.16 AAO on the other hand, claims full plenary powers to review both the legal17 interpretations and fact-finding, de novo. AAO has described its relationship with the18 service centers as being in the same position of Circuit Courts of Appeals over District19 Courts. AAO has singled out the service centers in its analogy because the vast majority20 of cases appealed to it arise from them. This is because AAO performs faceless paper-21 based appellate reviews of faceless paper-based adjudications. The service centers do not22 interview applicants or petitioners so, the vast majority of their decisions are appealable23
  7. 7. Page 7 of 9 to AAO completely de novo in all respects. The few “technically” faceless paper-based1 adjudications performed at local Field Offices are also appealable to AAO. I have qualified2 that last description as being “technically” so because some adjudications are combined3 such as an I-601 waiver application with an I-485 adjustment application and an I-1304 relative petition. Of those, only the I-485 is routinely adjudicated during or following an5 interview, the others could be and usually are, adjudicated without any need for an6 interview. Of those three forms, the I-485 has no administrative appeal but may be7 “renewed” for a fresh adjudication during Removal Proceeding; the I-130 is appealable8 to the BIA; and the I-601 is appealable to the AAO. Is it any wonder why our immigration9 system is always being accused of being “broken” and in need of “comprehensive reform”?10 The AAO conducts appellate review on a de novo basis. See Soltane v. Department11 of Justice, 381 F.3d 143, 145 (3d Cir. 2004). Here are more typical statements of authority.12 It is incumbent upon an applicant to resolve any inconsistencies in the record by13 independent objective evidence. Attempts to explain or reconcile such inconsistencies will14 not suffice without competent evidence pointing to where the truth lies. See Matter of Ho,15 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the applicant's evidence16 also reflects on the reliability of the applicant's remaining evidence. See id.17 The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:18 Ability of prospective employer to pay wage. Any petition filed by or for an employment-19 based immigrant which requires an offer of employment must be accompanied by20 evidence that the prospective United States employer has the ability to pay the proffered21 wage. The petitioner must demonstrate this ability at the time the priority date is22 established and continuing until the beneficiary obtains lawful permanent residence.23 Evidence of this ability shall be either in the form of copies of annual reports, federal tax24 returns, or audited financial statements.25
  8. 8. Page 8 of 9 The petitioner's ability to pay the proffered wage is an essential element in1 evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 1422 (Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job3 offer is realistic, United States Citizenship and Immigration Services (USCIS) requires the4 petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered5 wages, although the totality of the circumstances affecting the petitioning business will be6 considered if the evidence warrants such consideration. Without all of the evidence7 requested in the regulations, form instructions, or an RFE, it is not possible to complete8 an analysis of the petitioner's ability to pay the proffered wage based on the totality of its9 circumstances, as in Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l. Comm'r. 1967).10 AAO considers all pertinent evidence, including new evidence properly submitted11 upon appeal because the instructions to Form I-290B, Notice of Appeal or Motion, which12 are incorporated into the regulations by 8 C.F.R. § 103.2(a)(1), allow the submission of13 additional evidence on appeal. The instant record provides no reason to preclude14 consideration of any documents newly submitted on appeal. See Matter of Soriano, 1915 I&N Dec. 764, 766 (BIA 1988).16 The beneficiary must meet all of the job requirements set forth on the labor17 certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of18 Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of19 Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971 ). The priority date of the instant petition,20 which is the date the DOL accepted the labor certification for processing, is June 20, 2013.21 See 8 C.F.R. § 204.5(d).22
  9. 9. Page 9 of 9 See 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency1 has all the powers which it would have in making the initial decision except as it may limit2 the issues on notice or by rule."); see also Janka v. US. Dep 't of Transp., NTSB, 925 F.2d3 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the4 federal courts. See, e.g., Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).5 There has been an item on the regulatory agenda off and on for many years6 proclaiming that a Notice of Proposed Rule Making (NPRM) concerning AAO Procedural7 Reform is in the works. It is healthier not to hold your breath waiting for it to materialize.8 Now, to bring this essay around full circle, when one files an appeal the appeal must state9 an allegation of error as to a statement of fact, or conclusion of law, or both. Such stated10 allegations must be clear and precise. In other words, stated with specificity. On the11 flipside of this, AAO has admonished USCIS adjudicators when their written notices of12 denial have failed to provide the applicant or petitioner with a meaningful basis for13 appeal. That means that the reasons for denial are not explained well enough to be14 understood. Unfortunately, that situation happens too often.15 I believe that this situation is the result of various factors including, but not limited to:16  Poor grasp of the English language;17  Poor understanding of English grammar rules;18  Poor legal interpretation skills;19  Poor legal research skills;20  Poor legal writing skills; and21  Poor initial, in-service, and follow-up training by USCIS.22 23 That’s my two-cents, for now!