Administrative Appellate Jurisdiction1 in Immigration MattersThe jurisdiction of the AAO is limited to that authority spec...
(I) Decisions of district directors regarding withdrawal of approval of schools for attendanceby foreign students under Se...
(KK) Petition for Armed Forces Special Immigrant under Sec. 204.9 of this chapter;  (LL) Request for participation as a re...
(8) Decisions of Immigration Judges in rescission of adjustment of status cases, as provided inpart 1246 of this chapter. ...
evidence that you believe was misinterpreted with an explanation of the facts as you       interpret them.       You must ...
criminal trial while the AAO is the appellate body from an inquisitorial administrative paper-based and usually faceless a...
As noted above, the BIA acts under and exercises the authority of the AG on immigrationmatters. The AAO acts under and exe...
Additional cases on administrative law:       Londoner v. Denver (1908) • Bi-Metallic Investment Co. v. State Board of Equ...
the Board of Immigration Appeals and the Immigration Judges to continue to apply the           previously established stan...
order).7 Accordingly, the petition is dismissed to the extent Rangel-Perez seeks review of           the BIA‘s July 22, 20...
……To say that the concept of due process is flexible does not mean that judges are at       large to apply it to any and a...
   In the case of a petition that has been denied by USCIS and is subsequently appealed             to the AAO, USCIS pol...
AAO‘s as yet unwritten rules can widen as well as narrow the scope of evidence that it willexamine and the methods and tim...
‗fully.‘ USCIS is implementing these modifications because it believes that it would           be inappropriate to apply a...
reversible in any court under 5 USC § 706 (2)(A) as patently ―arbitrary, capricious, an abuse ofdiscretion, or otherwise n...
―There were no interpretive guidelines published in the Federal Register. See Pfaff v.       HUD, 88F.3d 739, 748 (9th Cir...
which makes ―second guessing‖ very problematic. The AAO on the other hand is usually dealingwith adjudications that were p...
administrative body is one that clearly had no bearing on the procedure used or the             substance of decision reac...
really needs its own regulations. It is clear that the current regulations pertaining to Appeals andMotions were created f...
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Administrative appellate jurisdiction in immigration matters EXPANDED

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Administrative appellate jurisdiction in immigration matters EXPANDED

  1. 1. Administrative Appellate Jurisdiction1 in Immigration MattersThe jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretaryof the United States Department of Homeland Security. See DHS Delegation Number 0150.1(effective March 1, 2003). Delegations that pertain to the Secretary‘s powers under the INA arecovered at least in part by 8 CFR Part 100, but gaps remain to be filled. FOIA submitted 3/14/11.General information as to the structure of DHS Delegations are found at:http://www.dhs.gov/xlibrary/assets/foia/mgmt_instruction_112_03_001_issuing_delegations_of_authority.pdfThe AAO exercises appellate jurisdiction over the matters described in 8 CFR § 103.1(f)(3)(iii)(as in effect on February 28, 2003), with two exceptions: (1) petitions for approval of schoolsand the appeals of denials of such petitions are the responsibility of Immigration and CustomsEnforcement; and (2) applications for S nonimmigrant status are the responsibility of the Officeof Fraud Detection and National Security of U.S. Citizenship and Immigration Services.8 CFR § 103.3 Denials, appeals, and precedent decisions.(a) Denials and appeals.(iv) Function of Administrative Appeals Unit (AAU). The AAU is the appellate body whichconsiders cases under the appellate jurisdiction of the Associate Commissioner, Examinations.8 CFR § 103.1(f)(3)(E)(iii) in its last incarnation indicated that the AAO had jurisdiction over: (iii) Appellate Authorities. In addition, the Associate Commissioner for Examinationsexercises appellate jurisdiction over decisions on; (A) Breaching of bonds under Sec. 103.6(e); (B) Petitions for immigrant visa classification based on employment or as a special immigrantor entrepreneur under Secs. 204.5 and 204.6 of this chapter except when the denial of the petitionis based upon lack of a certification by the Secretary of Labor under section 212(a)(5)(A) of theAct; (C) Indochinese refugee applications for adjustment of status under section 103 of the Act ofOctober 28, 1977; (D) Revoking approval of certain petitions under Sec. 205.2 of this chapter.; (E) Applications for permission to reapply for admission to the United States after deportationor removal under Sec. 212.2 of this chapter; (F) Applications for waiver of certain grounds of excludability under Sec. 212.7(a) of thischapter; (G) Applications for waiver of the two-year foreign residence requirement under Sec. 212.7(c)of this chapter; (H) Petitions for approval of schools under Sec. 214.3 of this chapter; [Now under ICE.]1 Department of Homeland Security Delegation Memos 0150 and 0150.1, Delegation to the Bureau of Citizenship and Immigration Services [nowUSCIS]. The specifics of these memos and any other subsequent delegations remain elusive. 1
  2. 2. (I) Decisions of district directors regarding withdrawal of approval of schools for attendanceby foreign students under Sec. 214.4 of this chapter; [Now under ICE.] (J) Petitions for temporary workers or trainees and fiancees or fiances of U.S. citizens underSecs. 214.2 and 214.6 of this chapter; (K) Applications for issuance of reentry permits under 8 CFR part 223; (L) Applications for refugee travel documents under 8 CFR part 223; (M) Applications for benefits of section 13 of the Act of September 11, 1957, as amended,under Sec. 245.3 of this chapter; (N) Adjustment of status of certain resident aliens to nonimmigrants under Sec. 247.12(b) ofthis chapter; (O) Applications to preserve residence for naturalization purposes under Sec. 316a.21(c) ofthis chapter; (P) Applications for certificates of citizenship under Sec. 341.6 of this chapter; (Q) Administration cancellation of certificates, documents, and records under Sec. 342.8 ofthis chapter; (R) Applications for certificates of naturalization or repatriation under Sec. 343.1 of thischapter; (S) Applications for new naturalization or citizenship papers under Sec. 343a.1(c) of thischapter; (T) Applications for special certificates of naturalization under Sec. 343b.11(b) of this chapter; (U) [Reserved] (V) Petitions to classify Amerasians under Public Law 97-359 as the children of United Statescitizens; (W) Revoking approval of certain applications, as provided in Secs. 214.2, 214.6, and 214.11of this chapter; (X) Orphan petitions under 8 CFR 204.3; (Y) Applications for advance process of orphan petitions under 8 CFR 204.3; (Z) Invalidation of a temporary labor certification issued by the governor of Guam under Sec.214.2(h)(3)(v) of this chapter; (AA) Application for status as temporary or permanent resident under Secs. 245a.2 or 245a.3of this chapter; (BB) Application for status as temporary resident under Sec. 210.2 of this chapter; (CC) Termination of status as temporary resident under Sec. 210.4 of this chapter; (DD) Termination of status as temporary resident under Sec. 245a.2 of this chapter; (EE) Application for waiver of grounds of excludability under Parts 210, 210a, and 245a ofthis chapter; (FF) Application for status of certain Cuban and Haitian nationals under section 202 of theImmigration Reform and Control Act of 1986; (GG) A self-petition filed by a spouse or child based on the relationship to an abusive citizenor lawful permanent resident of the United States for classification under section 201(b)(2)(A)(i)of the Act or section 203(a)(2)(A) of the Act; (HH) Application for Temporary Protected Status under part 244 of this chapter; (II) Petitions for special immigrant juveniles under part 204 of this chapter; (JJ) Applications for adjustment of status under part 245 of this title when denied solelybecause the applicant failed to establish eligibility for the bona fide marriage exemptioncontained in section 245(e) of the Act; 2
  3. 3. (KK) Petition for Armed Forces Special Immigrant under Sec. 204.9 of this chapter; (LL) Request for participation as a regional center under Sec. 204.6(m) of this chapter; (MM) Termination of participation of regional center under Sec. 204.6(m) of this chapter; (NN) Applications for certificates of citizenship under Secs. 320.5 and 322.5 of this chapter;and (OO) Applications for T nonimmigrant status under Sec. 214.11 of this chapter.AAO has its ―current‖ appellate jurisdiction posted on the USCIS website at:http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b2521eeaf28e6210VgnVCM100000082ca60aRCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRDThe BIA currently has jurisdiction over those subjects listed in:8 CFR § 1003.1 Organization, jurisdiction, and powers of the Board of ImmigrationAppeals.(b) Appellate jurisdiction. Appeals may be filed with the Board of Immigration Appeals from thefollowing:(1) Decisions of Immigration Judges in exclusion cases, as provided in 8 CFR part 240, subpartD.(2) Decisions of Immigration Judges in deportation cases, as provided in 8 CFR part 1240,subpart E, except that no appeal shall lie seeking review of a length of a period of voluntarydeparture granted by an Immigration Judge under section 244E of the Act as it existed prior toApril 1, 1997.(3) Decisions of Immigration Judges in removal proceedings, as provided in 8 CFR part 1240,except that no appeal shall lie seeking review of the length of a period of voluntary departuregranted by an immigration judge under section 240B of the Act or part 240 of this chapter.(4) Decisions involving administrative fines and penalties, including mitigation thereof, asprovided in part 280 of this chapter.(5) Decisions on petitions filed in accordance with section 204 of the act (except petitions toaccord preference classifications under section 203(a)(3) or section 203(a)(6) of the act, or apetition on behalf of a child described in section 101(b)(1)(F) of the act), and decisions onrequests for revalidation and decisions revoking the approval of such petitions, in accordancewith section 205 of the act, as provided in parts 204 and 205, respectively, of 8 CFR chapter I orparts 1204 and 1205, respectively, of this chapter. [USCIS Decisions on, including revocationsof, family based petitions except, under VAWA or Orphans. Note: 8 CFR has not been updatedto reflect current statutory provisions as described under current law, as amended.](6) Decisions on applications for the exercise of the discretionary authority contained in section212(d)(3) of the act as provided in part 1212 of this chapter.(7) Determinations relating to bond, parole, or detention of an alien as provided in 8 CFR part1236, subpart A. [ICE detention and ICE or IJ bond decisions.] 3
  4. 4. (8) Decisions of Immigration Judges in rescission of adjustment of status cases, as provided inpart 1246 of this chapter. [Prior to HSA 2002, the INS District Director could rescind anadjustment of status, now, in that rescission is not required prior to issuing an NTA, USCIS orICE can just refer the case to an IJ directly, so the issue of jurisdiction between the A.G. andDHS has not been addressed.](9) Decisions of Immigration Judges in asylum proceedings pursuant to §1208.2(b) of thischapter.(10) Decisions of Immigration Judges relating to Temporary Protected Status as provided in 8CFR part 1244. [AAO deals with USCIS denials of TPS but those same denials can also come upbefore an IJ and then the BIA if an NTA is issued.](11) Decisions on applications from organizations or attorneys requesting to be included on a listof free legal services providers and decisions on removals there from pursuant to §1003.65.[USCIS or ICE can instigate rescission of such an action if the conduct giving rise to discipline isbefore it.](12) Decisions of Immigration Judges on applications for adjustment of status referred on aNotice of Certification (Form I–290C) to the Immigration Court in accordance with§§1245.13(n)(2) and 1245.15(n)(3) of this chapter or remanded to the Immigration Court inaccordance with §§1245.13(d)(2) and 1245.15(e)(2) of this chapter. [The old INS form has beenreplaced by an EOIR form.](13) Decisions of adjudicating officials in practitioner disciplinary proceedings as provided insubpart G of this part. [USCIS or ICE can instigate such an action if the conduct giving rise tothe discipline is before it.](14) Decisions of immigration judges regarding custody of aliens subject to a final order ofremoval made pursuant to §1241.14 of this chapter. [ICE detention and bond matters.]Federal Court ReviewAdministrative Appellate Decisions are usually subject to further review by the Federal Courts.Some classes of cases have specific governing statutory provisions, while others are treatedunder general provisions of the Administrative Procedures Act (APA) [5 USC Title 7]. Somebenefits under the INA have mixed jurisdictional issues.For example, the Application for Certificate of Citizenship: An appeal to the AAO must be filed with the office that made the decision within 30 days of the date of the Denial Notice for personal service, 33 days if received by mail. If an appeal is not filed within the time allowed, a new N-600 may not be filed see 8 CFR 341.6. Instead, if at a later date you wish to pursue this citizenship claim anew, you may file, pursuant to 8 CFR 341.6, a form I-290B, with the current fee as of the date of that filing, for: 1.) a late Motion to Reopen with additional evidence and/or, 2.) a late Motion to Reconsider along with a brief identifying specifically any erroneous conclusion of law or statement of fact, along with legal references, and/or identifying the 4
  5. 5. evidence that you believe was misinterpreted with an explanation of the facts as you interpret them. You must exhaust the administrative appeal process afforded under the law by first appealing to the AAO (USCIS Administrative Appeals Office) before you may seek judicial review of the agency decision in the case, which would be to file a lawsuit in a U.S. District Court under INA § 360(a) [8 U.S.C. § 1503(a)] and pursuant to 28 U.S.C. § 2201. The existence of concurrent Removal Proceedings would preclude U.S. District Court judicial review under this section and restrict review to a Petition for Review in a U.S. Circuit Court of Appeals of any Removal Order following a BIA Dismissal of a Removal Order under 8 USC § 1252(b) [INA § 242(b)].Also the regulations governing the adjudication of Form N-565, Application for ReplacementNaturalization/Citizenship Document, need to be updated. They were written many years agoprior to not just one major statutory change but two major changes. The statutory naturalizationauthority was shifted from the U.S. Courts to the Attorney General and delegated to theImmigration and Naturalization Service (INS) in 1990. After the terrorist attacks of September11, 2001, Congress passed the Homeland Security Act of 2002 (HSA) and this statutorynaturalization authority shifted to the Secretary of Homeland Security and delegated to U.S.Citizenship and Immigration Services (USCIS).Court Criticism Of The Regulations:Hussain v. U.S. Citizenship & Immigration Servs., 541 F. Supp. 2d 1082 (D. Minn. 2008) wasdecided by United States District Judge Patrick J. Schiltz on March 27, 2008, in Minnesota. Heperformed a painstaking analysis on the topic and was rather critical of the regulations.In discussing 8 CFR § 334.16(b), the Judge said: ―This regulation specifies certain procedural requirements, but it provides virtually no substantive guidance to a court that is asked to order USCIS to issue an amended certificate of naturalization. Indeed, the regulation does not even directly address certificates of naturalization, but instead discusses the process for amending petitions for naturalization, including those petitions that have already been granted. Because amending an already-granted petition for naturalization seems like an oddly indirect way to go about obtaining an amended certificate of naturalization, the Court asked the parties if they had been able to identify any reason for this procedure. Both parties admitted that they had not……‖AAO Needs Its Own RegulationsIt is clear that the regulations pertaining to Appeals and Motions were created for a differentsituation than what now exists. The BIA is in a different forum than AAO. The BIA is theappellate body from an adversarial administrative proceeding which much more resembles a 5
  6. 6. criminal trial while the AAO is the appellate body from an inquisitorial administrative paper-based and usually faceless adjudication. The BIA and AAO are qualitatively different innature. Since March 1, 2003, the AAO should have been forming a new self identity inaccordance with its new home in a customer service oriented agency. USCIS is charged with thefair and impartial evaluation of eligibility for benefits under the Immigration and NationalityAct. AAO needs to re-evaluate its place in the grand scheme of the current reality as a part of theU.S. Citizenship and Immigration Services.The AAO simply deals with totally different types of cases than the BIA and needs newregulations specific to its actual role. The statutes and court decisions have shown that the BIAand issues arising in the federal courts from the BIA may deal with habeas review, matters ofesstoppel or res judicata, suppression of evidence obtained in violation of the 4th or 5thamendment rights and other legal concepts that have no place in AAO jurisdiction but may haverelevance to BIA and IJ jurisdiction. The AAO seriously needs to update its controllingregulations or just dump them and start from scratch because the regulations were never theAAO‘s regulations to begin with. They always belonged to the EOIR and BIA. AAO itself wasan afterthought, and no thought was ever given to promulgating AAO regulations until now.The Board was created by the Attorney General in 1940, after a transfer of functions from theDepartment of Labor. Reorg. Plan V (May 22, 1940); 3 CFR Comp. 1940, Supp. tit.3, 336. TheBoard is not a statutory body; it was created wholly by the Attorney General from the functionstransferred. A.G. Order 3888, 5 FR 2454 (July 1, 1940); see Matter of L-, 1 I&N Dec. 1 (BIA;A.G. 1940).AAU became AAO on Nov. 22, 1994, 59 FR 60070. The prior history as to the creation of theAAU will require further research. That internal reorganization2 of the Immigration andNaturalization Service was approved by Attorney General Janet Reno on January 14, 1994. ―The BIA is the creation of Attorney General regulations and has never been statutorily authorized. The Board traces its heritage to 1921 when the Secretary of Labor created a board to assist in performing quasi-judicial functions under the immigration and naturalization laws. In 1940, the Attorney General officially created the BIA, which for more than fifty years existed as part of the Immigration and Naturalization Service (INS), and consisted of only a chairman and four members. The BIA separated from the INS in 1983 and became part of the independent Executive Office of Immigration Review. Within the Executive Office of Immigration Review, the BIA is under direct line of supervision by the Attorney General and has authority to act on the Attorney Generals behalf. Thus, when the immigration laws confer a decision to the discretion of the Attorney General, the BIA has authority to administer that discretion. The BIA has grown rapidly over the last decade to twenty-three members and more than one hundred staff attorneys in order to keep up with a heavy caseload and expanding functions.‖32 See 59 FR 60070 of Nov. 22, 1994, search for ―Immigration and Naturalization Service‖ and view the TIFF File of the Reorganization Chart at:http://www.gpoaccess.gov/fr/search.html3 Bradley J. Wyatt, Even Aliens are Entitled to Due Process: Extending Mathews v. Eldridge Balancing to Board of Immigration AppealsProcedural Reform, 12 Wm. & Mary Bill of Rts. J. 605 (2004), http://scholarship.law.wm.edu/wmborj/vol12/iss2/10 6
  7. 7. As noted above, the BIA acts under and exercises the authority of the AG on immigrationmatters. The AAO acts under and exercises the authority of the Secretary of Homeland Securityon certain immigration matters pertaining primarily to benefits determinations under the INA.However, since the AG is the top legal position within the executive branch, at least forimmigration legal interpretations, any AAO precedent must be OK‘d by the BIA on behalf of theAG in order to become a published I&N Decision.INA § 103 [8 USC § 1103] Powers and duties of the Secretary, the Under Secretary, and theAttorney Generala) Secretary of Homeland Security (1) The Secretary of Homeland Security shall be charged with the administration andenforcement of this chapter and all other laws relating to the immigration and naturalization ofaliens, except insofar as this chapter or such laws relate to the powers, functions, and dutiesconferred upon the President, Attorney General, the Secretary of State, the officers of theDepartment of State, or diplomatic or consular officers: Provided, however, That determinationand ruling by the Attorney General with respect to all questions of law shall be controlling.*****g) Attorney General (1) In general The Attorney General shall have such authorities and functions under this chapter and allother laws relating to the immigration and naturalization of aliens as were exercised by theExecutive Office for Immigration Review, or by the Attorney General with respect to theExecutive Office for Immigration Review, on the day before the effective date of the ImmigrationReform, Accountability and Security Enhancement Act of 2002. (2) Powers The Attorney General shall establish such regulations, prescribe such forms of bond,reports, entries, and other papers, issue such instructions, review such administrativedeterminations in immigration proceedings, delegate such authority, and perform such otheracts as the Attorney General determines to be necessary for carrying out this section.Following three blurbs from: http://en.wikipedia.org/wiki/Mathews_v._Eldridge Mathews v. Eldridge, 424 U.S. 319 (1976), is a case in which the United States Supreme Court held that individuals have a statutorily granted property right in social security benefits, that the termination of those benefits implicates due process, but that the termination of Social Security benefits does not require a pre-termination hearing. The case is important in the development of American administrative law. 7
  8. 8. Additional cases on administrative law: Londoner v. Denver (1908) • Bi-Metallic Investment Co. v. State Board of Equalization (1915) • NLRB v. Hearst Publications (1944) • Skidmore v. Swift & Co. (1944) • Universal Camera Corp. v. NLRB (1951) • Goldberg v. Kelly (1970) • Citizens to Preserve Overton Park v. Volpe (1971) • Mathews v. Eldridge (1976) • Vermont Yankee v. NRDC (1978) • Chevron v. NRDC (1984) • United States v. Mead Corp. (2001) • Whitman v. ATA (2001) • National Cable & Telecommunications Association v. Brand X Internet Services (2005)Federal Statutes on administrative law: Administrative Procedure Act (1946) • Freedom of Information Act (1966) • Government in the Sunshine Act (1976) • Regulatory Flexibility Act (1980)Below from: http://www.oyez.org/cases/1970-1979/1975/1975_74_204 Facts of the Case: George Eldridge, who had originally been deemed disabled due to chronic anxiety and back strain, was informed by letter that his disability status was ending and that his benefits would be terminated. Social Security Administration procedures provided for ample notification and an evidentiary hearing before a final determination was made, but Eldridges benefits were cut off until that hearing could take place. Eldridge challenged the termination of his benefits without such a hearing. Question: Did the lack of an evidentiary hearing prior to the termination of disability benefits violate the Due Process Clause of the Fifth Amendment? Conclusion: No. In a 6-to-2 decision, the Court held that the initial termination of Eldridges benefits without a hearing did not violate due process. The Court noted that due process was "flexible" and called for "such procedural protections as the particular situation demands." The Court found that there were numerous safeguards to prevents errors in making decisions to terminate disability benefits and argued that "[a]t some point the benefit or an additional safeguard to the individual affected by the administrative action and to society, in terms of increased assurance that the action is just, may be outweighed by the cost."The BIA and the federal courts have an existing structure in place and the BIA is currently re-working its own regulations as ordered by the Attorney General.See: Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009), which held: The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed 8
  9. 9. the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.The validity of the BIA‘s regulatory procedural safeguards coupled with the statutory motion toreopen and the Petition for Review under INA § 242 has been born out as recently as March 3,2011, in the consolidated Opinion of the Second Circuit Luna v. Holder4 [Consolidating: 07-3796-ag Luna v. Holder and 08-4840-ag Thompson v. Holder]. ―…The sole and exclusive means for challenging a final order of removal is to file a petition for review in a federal court of appeals. If a petition for review is filed more than 30 days after the order of removal, the court of appeals lacks jurisdiction over the petition……. We hold that applying the 30-day filing deadline to Petitioners does not violate the Suspension Clause because the statutory motion to reopen process as described herein is an adequate and effective substitute for habeas review. We reach that conclusion based on our further holdings that (1) the statutory motion to reopen process cannot be unilaterally terminated by the Government and (2) agency denials are subject to meaningful judicial review. Accordingly, we dismiss as untimely Petitioners‘ petitions for review.‖ [Emphasis added.] …….. ―Before 1996, aliens involved in immigration proceedings could move to reopen their proceedings before the BIA. However, the authority for such motions derived solely from regulations promulgated by the Attorney General.‖Rosendo Benito Rangel-Perez v. U.S. Att’y Gen. No. 10-12963 (11th Cir, March 10, 2011)5 : ―…Rangel-Perez‘s brief does not address the BIA‘s denial of his motion to reconsider6. We lack jurisdiction to review the underlying merits of the denial of cancellation of removal. Rangel-Perez‘s June 29, 2010 petition for review was not filed within thirty days of the entry of the BIA‘s July 22, 2009 order affirming the denial of cancellation of removal. See Immigration and Nationality Act (―INA‖) § 242(b)(1), 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (explaining that the period for filing a petition for review ―is mandatory and jurisdictional, [and] it is not subject to equitable tolling‖ (quotation marks omitted)); Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350-51 (11th Cir. 2005) (explaining that the filing of a motion for reconsideration does not affect the finality of a removal order and that the order resolving the motion for reconsideration is a separately appealable final4 http://www.ca2.uscourts.gov/decisions/isysquery/fb2871ee-c2c1-43eb-b1b8-774c6900b6da/13/doc/07-3796%2008-4840_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb2871ee-c2c1-43eb-b1b8-774c6900b6da/13/hilite/5 http://www.ca11.uscourts.gov/unpub/ops/201012963.pdf6 ―We review de novo our own subject matter jurisdiction.‖ Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1283 (11th Cir. 2009). ―We review the BIA‘sdenial of a motion to reconsider for abuse of discretion.‖ Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007) (quotation marksomitted). 9
  10. 10. order).7 Accordingly, the petition is dismissed to the extent Rangel-Perez seeks review of the BIA‘s July 22, 2009 order. Rangel-Perez‘s June 29, 2010 petition for review is timely as to the BIA‘s June 1, 2010 denial of his motion for reconsideration. However, Rangel-Perez‘s brief does not offer any argument as to why the BIA abused its discretion in denying this particular motion. For this reason, Rangel-Perez has abandoned any argument regarding the BIA‘s denial of his motion for reconsideration. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (―When an appellant fails to offer argument on an issue, that issue is abandoned.‖). Therefore, the petition is denied as to the BIA‘s June 1, 2010 denial of Rangel-Perez‘s motion for reconsideration.‖There seems to be much more in the way of direct case-law8 and history behind the BIA than theAAO but it is not without case-law to guide its development. The AAO can greatly benefit fromall that has come before it. USCIS just needs to look around and find where it fits it and what itneeds to accomplish through AAO. AAO often seems trapped in 8 CFR Part 100, it needs to readon as directed to do so.8 CFR § 103.2 Applications, petitions, and other documents. (a) Filing —(1) General. Every application, petition, appeal, motion, request, or other document submitted on any form prescribed by this chapter I, notwithstanding any other regulations to the contrary, must be filed with the location and executed in accordance with the instructions on the form, such instructions being hereby incorporated into the particular section of the regulations in this chapter I requiring its submission……..Different applications and petitions may be filed under a vast body of statutes and regulationsnone should be overlooked in deciding a particular case. The regulation above cites specificallyto chapter I, which is the DHS part of 8 CFR, while the only other chapter is V, for EOIR. ―[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved, as well as of the private interest that has been affected by governmental action.‖ Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961). ―…Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible, and calls for such procedural protections as the particular situation demands. ….. ………….7 In fact, in August 2009, Rangel-Perez timely filed a petition for review of the BIA‘s July 22, 2009 order. On September 10, 2010, a panel of thisCourt dismissed Rangel-Perez‘s petition for review, concluding that Rangel-Perez, although couching his argument in due process terms, hadeffectively presented an abuse-of-discretion argument regarding the discretionary decision to deny cancellation of removal, a claim this Courtdoes not have jurisdiction to review. See Rangel-Perez v. U.S. Att’y Gen., No. 09-13934 (11th Cir. Sept. 10, 2010) (unpublished). In both hisearlier appeal and this appeal, Rangel-Perez‘s arguments focus primarily on whether the IJ erred in finding that Rangel-Perez had not made theshowing of exceptional and extremely unusual hardship required for cancellation of removal.8 Aside from Kazarian v. USCIS, 596 F.3d 1115, C.A.9 (Cal.), March 04, 2010 (NO. 07-56774). 10
  11. 11. ……To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.‖ Morrissey v. Brewer, 408 U. S. 471, (1972) 408 U. S. 481.Standard of Review and Guiding PrinciplesThe technical standard of review under which the AAO reviews cases is not codified in statute orregulation or published on the public AAO website. The AAO reviews all cases on a de novobasis, pursuant to Second and Ninth Circuit Court of Appeals decisions (See Dor v. INS, 891F.2d 997, 1002 n. 9 (2d Cir. 1989); Spencer Enterprises Inc. v. US, 229 F.Supp.2d 1025, 1043(E.D. Cal. 2001), aff.’d. 345 F.3d 683 (9th Cir. 2003)). This standard of review and case lawauthority is stated in AAO decisions, and was provided to the Ombudsman‘s office in responseto a formal Ombudsman‘s query submitted to the AAO.Additionally, in the response to the CIS Ombudsman on December 19, 2005, USCIS indicatedthat a regulatory rule was in development, excerpt below, and re-iterated that assertion at astakeholder meeting on Oct 20, 2010, also excerpted below. ―Although this standard of review is apparent in case law and in AAO decisions, USCIS is currently seeking to publish this standard of review in the Federal Register as part of USCIS Interim Rule 16 15-AB24: "Administrative Appeals Office: Procedural Reforms to Improve Efficiency." Once published, title 8 of the Code of Federal Regulations will be amended to read in part: "[t]he AAO reviews de novo any question of law, fact, discretion, or any other issue that may arise in an appeal that falls under its jurisdiction." 8 C.F.R. 8 103.3(h)(2)(i) of USCIS Interim Rule 1615-AB24. In addition, the supplementary information defines the term in plain language, noting that "the term de novo means that the AAO reviews a case as if the original decision never took place. In a de novo review, the AAO is not required to give deference to or take notice of the findings made in the original decision." USCIS Interim Rule 1615-AB24 at page 14.‖The anticipated USCIS Interim Rule 16 15-AB24: ―Administrative Appeals Office: ProceduralReforms to Improve Efficiency‖ never materialized since 2005.From the 10/20/2010, AAO stakeholder meeting executive summary: “USCIS Policies Some stakeholders asked USCIS to reconsider the following policies:  In the case of a Form I-140 that is denied by USCIS and subsequently appealed to the AAO, current USCIS policy states that the related Form I-485 must be denied. One stakeholder commented that the Form I-485 should be considered pending while on appeal. 11
  12. 12.  In the case of a petition that has been denied by USCIS and is subsequently appealed to the AAO, USCIS policy states that Service Centers will hold a subsequent filing in abeyance pending the outcome of the appeal. This means that if a petition is denied and the petitioner appeals that decision to the AAO and also submits a second petition to USCIS, the Service Center will temporarily put this petition aside and not make a decision on it until the appeal is withdrawn or a decision is made on the appeal. At least one stakeholder commented that this policy leaves petitioners with no recourse.  One stakeholder asked after the engagement about addressing accrual of unlawful presence while a case is pending before the AAO. The AAO stated that it is working to publish a proposed regulation that will help streamline the appeals process and give the public a much better understanding of what to expect when they file an appeal. The proposed AAO regulation, to be published for public comment soon, will address the third issue noted above and may provide an opportunity for stakeholders to comment on other policies, such as the first and second issues noted above.‖ [Remember that this remark is dated 10/20/2010.]While the scope of appellate review is codified as to matters before the BIA, the AAO does nothave corresponding regulations and is ruled by a combination of court recognized authority asnoted above, borrowed BIA regulations, and selected passages from the APA as to scope ofreview. The AAO repeatedly cites similar language in its decisions on the scope of its review butit is still vague, inconsistent in applying it, and incorrect in applying correct standards at times. ―The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit 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 AAOs de novo authority has been long recognized by the federal courts. See, e.g., Dor v. INS, 89 1 F.2d 997, 1002 n. 9 (2d Cir. 1989).‖By what notice or rule does the AAO decline to perform a full de novo review of an applicationthat is not tied to the filing date as a priority date and which has no statutory requirement to fullydemonstrate eligibility at time of filing? AAO has lost sight of what the underlying material lineof inquiry is in some of its decisions by striving to apply its limited stock of notable quotes andprinciples that it can use in determining issues before it. ―While USCIS does, on a case-by-case basis consider new evidence on certification, the fact that the regulation at 8 C.F.R. § 103.4(a)(2) does not specifically provide for the submission of new evidence in addition to a brief on certification, supports our finding that the AAO is not required to consider new evidence that would not be considered on appeal.‖The definition of the word ―limit‖ is variable. It can mean the greatest possible degree ofsomething; as far as something can go; the boundary of a specific area; or to restrict or confine. 12
  13. 13. AAO‘s as yet unwritten rules can widen as well as narrow the scope of evidence that it willexamine and the methods and timing in which it will accept such evidence.The requirement to ―establish eligibility at time of filing‖ in order to secure a priority date forlater visa issuance purposes from Matter of Katigbak, has statutory roots in INA §§ 201 and 203concerning the allocation of visas based on the various family and employment based preferencecategories. The basis for the form I-924 and the Regional Center Designation, for example, hasno such statutory counterpart that would force the establishment of ―eligibility at time of filing‖.That applicant must merely exist at time of filing. The rest is open to further development.On April 17, 2007, 72 FR at 191059 added:8 CFR § 103.2 Applications, petitions, and other documents. (b)(1) Demonstrating eligibility at time of filing. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the form‘s instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition.This was, in reality, a codification of Matter of Katigbak,14 I&N Dec. 45 (Reg, Comm., 1971).The above regulation is often ultra vires as applied by AAO.In the Federal Register Notice on April 17, 2007, which introduced 8 CFR § 103.2(b)(i), aspart of the final rule, effective on June18, 2007, the discussion included: “C. Uniform Application of the “Preponderance of Evidence” Standard One commenter approved of the ‗preponderance of the evidence‘ standard as proposed at 8 CFR 103.2(b)(8)(i). The commenter, however, objected to the proposed language in 8 CFR 103.2(b)(8)(ii), which allows USCIS to deny an application or petition, request more evidence, or notify the applicant or petitioner of its intent to deny if the ‗evidence submitted does not fully establish eligibility.‘ The commenter stated, ‗[c]onflating the preponderance standard with a ‗full eligibility‘ standard merges two irreconcilable concepts, unless it is clear that a preponderance of the evidence does, indeed, establish full eligibility. The regulation would be more acceptable if the language were changed to delete the ‗fully establish eligibility‘ language, and if language were added to state that the only cases that may be denied without an RFE are ones in which there is clear evidence of ineligibility.‘ (Emphasis in original). In response to these comments, USCIS has modified 8 CFR 103.2(b)(8)(i) to remove the phrase, ‗the preponderance of‘ and to modify 8 CFR 103.2(b)(8)(ii) to remove the word9 http://edocket.access.gpo.gov/2007/pdf/E7-7228.pdf 13
  14. 14. ‗fully.‘ USCIS is implementing these modifications because it believes that it would be inappropriate to apply a single standard in 8 CFR 103.2(b)(8)(i) and (ii) to all USCIS adjudications. Furthermore, these modifications clarify that adjudications can involve different evidentiary standards or burdens. Under current regulations, some applications or petitions must demonstrate a preponderance of the evidence, while other applications or petitions require clear and convincing evidence, to establish eligibility.‖ 72 FR at 19103 [Emphasis added.]The requirement to be ―eligible at time of filing‖ does have its proper place, when it is relevantand determinative/dispositive. This is most assuredly the case in securing a priority date forissuance of a preference category visa where the filing date equates to a priority date for issuanceof that visa. It does not, however, have anything to do with an N-600, for instance, which iscontrolled by INA § 341 that requires a showing of evidence ―to the satisfaction of‖ USCIS thatone ―is a citizen‖ in order to be administered the Oath and be ―furnished….with a certificate ofcitizenship.‖ This determination is not final until the end of the process, like an N-400 is notcompletely processed until the Oath is administered and certificate issued.The AAO is also in love with its own Matter of Izummi, 22 I&N Dec. 169 (AAO10 1998) whichholds, in pertinent part: (3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.That same decision goes on to further explain the underlying requirement, thus: ―A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements.‖Another prime example of an inappropriate application of refusal to accept a ―material change‖after filing is the I-924 for designation as a Regional Center. USCIS actually instigates materialchanges in order to make an insufficient proposal approvable. The Regional Center is a merely ahelper to future I-526 EB-5 visa petition filers.Another example would be an applicant who files an N-565 because she lost her certificate ofnaturalization, let‘s say, her house burned down. She files for a replacement and USCIS sits onthe N-565 for a year without action. In the interim, the applicant marries and her last namechanges. What is USCIS going to do? She married six months after filing and submittedadditional evidence after filing that but prior to USCIS action. If a change in marital status andname does not constitute a material change, I don‘t know what does. In rigidly applying theultra vires regulation, Katigbak, and Izummi, the N-565 must either be issued in her maidenname, stating that she is single OR must be denied. This is a ridiculous outcome that is plainly10 Although the decision as noted on the EOIR website lists this as a BIA precedent and the actual I&N Decision credits it to, then INS, RegionalCommissioner, it was actually rendered by the AAO, of what was then INS (USCIS). 14
  15. 15. reversible in any court under 5 USC § 706 (2)(A) as patently ―arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law‖.One last example would be to deny an N-600, wherein, the applicant has proven that he is a U.S.Citizen, merely because he filed before his parent naturalized (actually, the parents wereconfused and filed the N-600‘s on behalf of their three minor children concurrently with their N-400‘s). However, the error is not discovered for 9 months which is a full 5 months after theparents naturalized. In rigidly applying the ultra vires regulation, Katigbak, and Izummi, thethree N-600‘s must be denied because these USC‘s were not USC‘s on the filing date. Theholding would be something like, ―Yes, we know that you are citizens but you filed too early.Even though USCIS took so long to find out about it because of our processing delay, we mustdeny your Certificates of Citizenship on a stupid technicality. You may not file a new N-600 butinstead must file an I-290B and it must be marked as an Appeal and filed within 30 days. If youstill want a certificate after 30 days, you must file a Motion on the very same form. If you checkthe wrong box after 30 days we will reject that Appeal as untimely and direct you to file aMotion with a 3rd fee. Then we might dismiss your Motion on some other stupid technicality andmake you file a lawsuit in a federal court.‖This is another ridiculous outcome that is plainly reversible in any court under 5 USC § 706(2)(A) as patently ―arbitrary, capricious, an abuse of discretion, or otherwise not in accordancewith law‖. The saddest part of this ridiculous outcome is that it has already happened at least partof the way, I don‘t think it went all the way to court. It was denied because AAO would notaccept the new evidence of USC status on appeal and advised them to file a new N-600 whichitself is contrary to the controlling regulation at 8 CFR 341.6.AAO is confusing underlying issues that are pertinent to the matter at hand. AAO sometimeslatches on to what little guidance it has gleaned from the various court and prior administrativeprecedents because it has so little direct guidance. AAO is charged with determining appeals andmotions from denials of benefits but sometimes tries to apply rules that are only suited to casesbefore the BIA. Additionally, AAO consistently pushes the ―eligibility at time of filing‖ conceptbeyond its proper scope. ―The AAO further notes that ex parte communications are prohibited by the Administrative Procedure Act (APA), 5 U.S.C. § 706. According to § 551 (14) of the APA, "ex parte communication" is defined as "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter."…. Significantly, ex parte communications are not part of the record of proceeding and cannot be considered in future proceedings, such as the appeal before us. Thus, Service Center Operations did not err when it declined to meet with the appellant.‖AAO is in a special situation in lacking regulations, it is staring with an almost blank slate.From: Spencer Enterprises v. U.S., 229 F.Supp.2d 1025, 1038 n. 4 (E.D. Cal. 2001)aff‟d 345 F.3d 683 (9th Cir.2003): [In considering the 1998 AAO EB-5 Precedents.] 15
  16. 16. ―There were no interpretive guidelines published in the Federal Register. See Pfaff v. HUD, 88F.3d 739, 748 (9th Cir. 1996). No officially published opinions of the INS General Counsel had been issued. See Han v. DOJ, 45 F.3d 333, 339 (9th Cir. 1995). There was therefore no prior decision, no prior rule, no prior statute, no interpretive guideline, or officially published opinion on which any party could rely in good faith. Plaintiffs had no legally vested right in or justification for relying on the prior unpublished decisions to give rise to estoppel.‖A naturalization applicant automatically has two chances to pass INA § 312 English and civicsrequirements and is afforded more chances through a Second Hearing (N-336 ―appeal‖) andthree further tiers of judicial review. AAO should look to 8 CFR § 336.2 as a guide in how tohandle appeals in a benefits context. In this context it is appropriate to further develop a caseand accept evidence on appeal. The Social Security Adminsistration does it.8 CFR § 1003.1 Organization, jurisdiction, and powers of the Board of ImmigrationAppeals.(d) Powers of the Board(3) Scope of review.(i) The Board will not engage in de novo review of findings of fact determined by animmigration judge. Facts determined by the immigration judge, including findings as to thecredibility of testimony, shall be reviewed only to determine whether the findings of theimmigration judge are clearly erroneous.(ii) The Board may review questions of law, discretion, and judgment and all other issues inappeals from decisions of immigration judges de novo.(iii) The Board may review all questions arising in appeals from decisions issued by Serviceofficers de novo.(iv) Except for taking administrative notice of commonly known facts such as current events orthe contents of official documents, the Board will not engage in factfinding in the course ofdeciding appeals. A party asserting that the Board cannot properly resolve an appeal withoutfurther factfinding must file a motion for remand. If further factfinding is needed in a particularcase, the Board may remand the proceeding to the immigration judge or, as appropriate, to theService.Court Review of Administrative Appellate DecisionsThe BIA basically follows the same standard of review as the U.S. Courts of Appeals uses toreview its decisions because the IJ has the actual alien (petitioner/beneficiary/applicant) and anywitnesses in front of him/her and can judge demeanor and weigh the evidentiary value of oraltestimony. The BIA, like the courts, is dealing with the record of proceeding (ROP). While theROP could contain an audio or even video recording, even those do not capture everything, 16
  17. 17. which makes ―second guessing‖ very problematic. The AAO on the other hand is usually dealingwith adjudications that were performed on a written record to begin with. USCIS Service Centersare all paper-based, faceless, remote adjudications with no applicant or petitioner present. Thosecases arising from a District or Field Office which end up before the AAO are usually paper-based, faceless, remote adjudications also. As examples, the N-565, N-470, I-601, I-212, evenmany N-600‘s do not require an interview in order to render a decision, most just show up for theOath and to hand over their greencards in exchange for a Certificate of Citizenship. The biggiesarising from the District and Field Offices are the N-400 with its special N-336 ―SecondHearing‖ and further Judicial review path and the I-485 which has no appeal rights but can bereconsidered by an IJ in Immigration Court are removed from the AAO‘s jurisdiction becausethey really rely on a face-to-face adjudication. The I-485 can also be challenged in court but onlythrough a writ of mandamus.From a 5th Circuit unpublished opinion Smaha v. Holder, No. 10-60339, (5th Cir. March 14,2011)11. ―We review the factual findings of the immigration court for substantial evidence, and we review legal questions de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Because the BIA adopted the IJ‘s findings, the IJ‘s findings are subject to our review. Id. at 593. We will defer ―to an IJ‘s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.‖ Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation and citation omitted)‖When an AAO Dismissal or Affirmance comes before a U.S. Federal Court such as in thisexample from the 9th Circuit: Family Inc. v. U.S. Citizenship & Immigration Servs., 469 F.3d1313 (9th Cir. 2006). ―We review the entry of summary judgment de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). However, the underlying agency action may be set aside only if ―arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‖ 5 U.S.C. § 706(2)(A); Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001) (citation omitted). The agency‘s factual findings are reviewed for substantial evidence. Monjarez-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003), amended by 339 F.3d 1012 (9th Cir. 2003). We will not disturb the agency‘s findings under this deferential standard ―unless the evidence presented would compel a reasonable finder of fact to reach a contrary result.‖ Id. at 895 (citation omitted).‖12The 9th Circuit adds to the underlying rules regarding ―harmless errors‖ in this passage fromKazarian v. USCIS, 596 F.3d 1115, C.A.9 (Cal.), March 04, 2010 (NO. 07-56774). ―In circumstances where an agency errs, we may evaluate whether such an error was harmless.‖ Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1071 (9th Cir. 2004); see 5 U.S.C. § 706. ―In the context of agency review, the role of harmless error is constrained. The doctrine may be employed only ‗when a mistake of the11 http://www.ca5.uscourts.gov/opinions/unpub/10/10-60339.0.wpd.pdf12 http://www.ca9.uscourts.gov/datastore/opinions/2006/12/04/0535310.pdf 17
  18. 18. administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached.‘ ‖ Gifford Pinchot, 378 F.3d at 1071 (citing Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir. 1982)) (emphasis added by the Gifford Pinchot court). ―We will not usually overturn agency action unless there is a showing of prejudice to the petitioner.‖ Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002).‖From a CIS Ombudsman hosted teleconference on January 28, 200913, USCIS provided input onthis topic: 1. Motion to Reopen vs. Appeal - A caller asked what the procedural distinction is between a motion to reopen or reconsider and an appeal. Can USCIS elaborate on the procedural differences? USCIS Response: While motions to reopen, motions to reconsider, and appeals are similar, there are certain differences. A motion to reopen is based on factual grounds – such as the discovery of new evidence or changed circumstances – and, therefore, the motion must "state the new facts to be proved at the reopened hearings and shall be supported by affidavits or other evidentiary material." 8 CFR § 103.5(a)(2). A motion to reconsider, on the other hand, is based on legal grounds. It must establish that the decision was incorrect based on the evidence in the record at the time of the initial decision; and it must "state the reasons upon which the motion is based and shall be supported by …‖ relevant precedent decisions. 8 CFR § 103.5(a)(3). Motions to reopen and reconsider are submitted to the same adjudicating authority that made the initial decision. An appeal is a request for review of a decision by a superior adjudicating authority. When an applicant or petitioner appeals a decision, the adjudicating officer will first review the record of proceeding to determine whether the evidence or argument submitted in support of the appeal warrants reopening or reconsidering the denial decision and approving the application or petition. If the adjudicating officer determines that reopening or reconsidering the decision is not warranted, the case will be forwarded to the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), whichever has jurisdiction over the application or petition type at issue. Please note, however, that not all cases may be appealed. If the application or petition can be appealed, the appropriate appellate authority and any applicable deadlines will be provided with the denial or revocation notice. Also, with an appeal, an applicant or petitioner may be permitted additional time to submit a brief and/or supporting evidence; however, no such provision applies to motions. Any additional evidence must be submitted concurrently with the motion.The Differences between AAO and BIAThe regulations cited above were written by EOIR as part of INS for the BIA. AAO just usesthem because they have none of their own. AAO and BIA are qualitatively different and AAO13 http://www.dhs.gov/xabout/structure/gc_1236024971749.shtm 18
  19. 19. really needs its own regulations. It is clear that the current regulations pertaining to Appeals andMotions were created for a different venue than what now exists. The BIA is in a different forumthan AAO. The BIA is the appellate body from an adversarial administrative proceeding whichmuch more resembles a criminal trial while the AAO is the appellate body from an inquisitorialadministrative paper-based and usually faceless adjudication. The BIA and AAO arequalitatively different in nature. Since March 1, 2003, the AAO should have been forming anew self identity in accordance with its new home in a customer service oriented agency. USCISis charged with the fair and impartial evaluation of eligibility for benefits under the Immigrationand Nationality Act. AAO needs to re-evaluate its place in the grand scheme of the currentreality as a part of the U.S. Citizenship and Immigration Services.The AAO is charged with reviewing requests for benefits under the INA. The BIA deals withappeals of Orders of Removal from the United States. An IJ is also tasked with determiningeligibility for certain benefits but the alternatives to the IJ denial are more drastic by comparisonas the IJ denial can result in expulsion from the United States or continued detention. The BIA isalso tasked with considering eligibility for certain benefits under the INA but again theconsequences of their denial are more drastic. The AAO can also be in such a position in thecases concerning a waiver that will allow for adjustment of status if approvable on all othergrounds by the Center, District or Field Office Director or potential issuance of a visa ifapproved by a Consular Officer as to other grounds.However, many of the cases before the AAO are more akin to the benefits being determined byother Administrative Appellate Bodies. For example, the Social Security Administration has amore elaborate three level Administrative Appeals Process and handles cases a bit differently.Additionally, the Department of Labor has a more elaborate process with five Appellate Bodies,three of which may deal with issues under the INA. Like any agency, once the administrativeappeals are exhausted when required, the Federal Courts are still available. Some INA benefitsand consequences have specific courses to follow in order to reach a court such as an N-400, N-565, N-600, which have specific INA and 8 CFR sections controlling their journey throughUSCIS to reach a court to reach a court while Orders of Removal have their own separate paththrough DHS (ICE, CBP or USCIS) and EOIR (IJ‘s and BIA). Citizenship claims, relative visapetitions and conditional residence can bounce between DHS and EOIR to end up in court.5 USC § 704 Actions reviewableAgency action made reviewable by statute and final agency action for which there is no otheradequate remedy in a court are subject to judicial review. A preliminary, procedural, orintermediate agency action or ruling not directly reviewable is subject to review on the review ofthe final agency action. Except as otherwise expressly required by statute, agency actionotherwise final is final for the purposes of this section whether or not there has been presented ordetermined an application for a declaratory order, for any form of reconsideration, or, unless theagency otherwise requires by rule and provides that the action meanwhile is inoperative, for anappeal to superior agency authority.(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.) 19

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