AAO Plenary De Novo Power vs. Trumped by Regs?By Joseph P. Whalen (May 28, 2013)What are we to believe from this unregulated and uncensoredadministrative appellate body? On the one hand they wield unfetteredappellate authority and on the other hand they find that their handsare tightly bound by (often outdated) regulations. It is not up to me todecide, you be the judge. Here are but some examples of conflictingpositions.“The AAO maintains plenary power to review each appeal on a de novo basis. 5U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency hasall the powers which it would have in making the initial decision except as it maylimit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp.,NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AA0’s de novo authority hasbeen long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997,1002 n. 9 (2d Cir. 1989).” At p. 3 [Emphasis added.]Above from: http://www.uscis.gov/err/B6%20-%20Skilled%20Workers,%20Professionals,%20and%20Other%20Workers/Decisions_Issued_in_2010/Mar152010_17B6203.pdf“Counsels arguments regarding the obligation of USCIS to reopen the applicants2007 Form 1-131 have no merit in this proceeding. As stated in our prior decision,each application filing is a separate proceeding with a separate record. See 8C.F.R. § 103.8(d)1. In making a determination of statutory eligibility, USCIS islimited to the information contained in the record of proceeding. See 8 C.F.R. §103 .2(b )(l6)(ii)2. The application before us on motion is the one that theapplicant filed on May 28, 2010. The AAO does not have jurisdiction to reopenthe 2007 application that resulted in the destruction of the applicants reentrypermit. See 8 C.F.R. § 103.5(a)(l)(ii)3. The applicant does not dispute that shefiled the instant Form I-131 while she was in Pakistan. Thus, as the applicant wasnot present in the United States at the time the instant application was filed withUSCIS, the application may not be approved. 8 C.F.R. § 223.2(b)(l). Accordingly,the denial of the Form 1-131 was the proper result.” [Emphasis added.]18 CFR 103.8 (d) When personal service not required. Service of other types of papers in proceedingsdescribed in paragraph (c) of this section, and service of any type of papers in any other proceedings, maybe accomplished either by routine service or by personal service.28 CFR 103.2(B)(16) (ii) Determination of statutory eligibility. A determination of statutory eligibilityshall be based only on information contained in the record of proceeding which is disclosed to the applicantor petitioner, except as provided in paragraph (b)(16)(iv) of this section.38 cfr 103.5(A)(1)(ii) Jurisdiction. The official having jurisdiction is the official who made the latestdecision in the proceeding unless the affected party moves to a new jurisdiction. In that instance, the newofficial having jurisdiction is the official over such a proceeding in the new geographical locations.
Above from: Oct072011_01I1223.pdf at p. 2“Thus, Kazarian4sets forth a two-part approach where the evidence is firstcounted and then considered in the context of a final merits determination. In thismatter, the AAO will review the evidence under the plain language requirementsof each criterion claimed. As the petitioner did not submit qualifying evidenceunder at least three criteria, the proper conclusion is that the petitioner has failedto satisfy the regulatory requirement of three types of evidence. Id.”Above from: Apr022012_01B2203.pdf“In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit)reviewed the denial of a petition filed under this classification. Kazarian v.USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAOsdecision to deny the petition, the court took issue with the AAOsevaluation of evidence submitted to meet a given evidentiary criterion.1With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the courtconcluded that while USCIS may have raised legitimate concerns about thesignificance of the evidence submitted to meet those two criteria, thoseconcerns should have been raised in a subsequent "final meritsdetermination." Id. at 1121-22.The court stated that the AAOs evaluation rested on an improperunderstanding of the regulations. Instead of parsing the significance ofevidence as part of the initial inquiry, the court stated that "the properprocedure is to count the types of evidence provided (which the AAO did),"and if the petitioner failed to submit sufficient evidence, "the properconclusion is that the applicant has failed to satisfy the regulatoryrequirement of three types of evidence (as the AAO concluded)." Id. at1122 (citing to 8 C.F.R. § 204.5(h)(3)).” at p. 3Above from: http://www.uscis.gov/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2012/Apr022012_01B2203.pdfAAO was supposed to have put forth a self-governing regulation sinceMarch 2012. Actually, it has been in the works since 1995. Still to thisday, we have NOTHING! Isn’t it about time that the immigrationpractitioners raised a fuss over this? Get off your hands, people, andspeak up, I can’t do it alone.That’s my two-cents, for now4Document contains web addresses for cases cited: http://www.slideshare.net/BigJoe5/amicus-brief-to-uscis-on-kazarian-final-merits-determination-aug-20-2011-jpw-redacted