Alien’s Status During Appeal Of I-485                          By Joseph P. Whalen (September 10, 2012)The title of this e...
filed in that manner. The majority of the I-485s that are decided by an IJ (or the BIAon appeal from an IJ) are actually I...
BIA Appellate Jurisdiction Over IJs Denial of AdjustmentThe appellate body within EOIR is the BIA. This structure allows f...
certain Class Action Settlement Agreements (CSS, ABC, etc...) vest either INS orUSCIS and thereby AAO with original appell...
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Alien's status during appeal of I-485

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I fixed some typos and probably missed some too! 9/12/2012 around noon eastern time.

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Alien's status during appeal of I-485

  1. 1. Alien’s Status During Appeal Of I-485 By Joseph P. Whalen (September 10, 2012)The title of this essay is a bit misleading because there is NO APPEAL for the vastmajority of adjustment applicants. I chose to use the concept of an “Appeal of an I-485” because so many people seek information on that topic and it seemed like a goodterm for internet searches. For the most part, the aliens are in limbo after USCIS’ oran IJ’s denial of adjustment unless they continue proceedings and get a stay or theyhave retained some other status (student, TPS, or other non-immigrant classification). USCIS and IJ1s Share Original Adjustment JurisdictionOver half of the slightly more than one-million new immigrants to the U.S. each yearalready live here and gain LPR status through adjustment of status. The remainderobtain immigrant visas issued by the State Department abroad. There are two venuesfor filing an I-485 in the first instance. One may file an I-485 as an affirmative requestfor a benefit by submitting the form with fee to USCIS. This is the way that the vastmajority of I-485s are filed. If an applicant is first placed in Removal Proceedings,then an affirmative request may be made to the IJ as a defensive move. Sometimes theIJ will close or terminate Removal Proceedings and make the alien file an I-485 withUSCIS instead and this seems to be the growing trend and preferred approach. Ifsomeone appears prima facie eligible to adjust status based on an approved or likely tobe approved immigrant petition, it is more cost effective and administratively efficientto make the alien file the affirmative benefits request with the benefits grantingagency than with the Immigration Court. The Immigration Judge’s Specific JurisdictionThere are however, certain forms of relief that only an IJ has the legal authority togrant. In those instances, the I-485 must be submitted to the IJ one way or another.While an IJ may accept an I-485 affirmatively in the first instance, few are actually1 Immigration Judges (IJs) preside over Immigration Courts administered by the Department ofJustice’s Executive Office of Immigration Review (EOIR). The Board of Immigration Appeals(BIA or Board) is the appellate body for EOIR exercising the authority of the Attorney General(A.G.) and often issues Precedent Decisions on immigration law interpretation. USCIS containsDHS’ principal appellate body known as the Administrative Appeals Office (AAO). There aresmaller, more obscure, narrowly limited, and less well-known officials and groups that also issuecertain appellate decisions within DHS. The biggest other such DHS appellate body is withinCBP and really deals with Customs rather than Immigration matters. Page 1 of 4
  2. 2. filed in that manner. The majority of the I-485s that are decided by an IJ (or the BIAon appeal from an IJ) are actually I-485s that were already denied by USCIS.In these instances, the I-485 is being “renewed” before the IJ.The IJ does NOT exist within the same Agency or even the same Department asUSCIS, therefore, the IJ is not precisely performing an “Agency Review” ascontemplated by the Administrative Procedures Act (APA). See especially 5 USC §§554-557. The IJ is having a “fresh look” at the alien’s eligibility. While the IJ mayand generally must consider the entire administrative record of proceeding [referred toas either the: 1.) Administrative Record (A.R.) or; 2.) Record of Proceeding (ROP)],(s)he is not bound by the findings of fact or law of the USCIS Adjudicator who actedin the name of a particular “Director 2” and is free to start from scratch.On the flipside of this equation, AAO has determined that in the appropriate contextswhere DHS/USCIS has sole and/or original jurisdiction, it is not bound by the findingof fact or law of the IJ 3. This last is especially the cases involving nationality orcitizenship claims. The IJ may administratively close or terminate RemovalProceedings when DHS (ICE or CBP) fails to meets its basic burden of proof (to theclear and convincing standard of proof) as to the respondent’s alienage in the face of apossible claim to citizenship that might be true if fully developed. In such a case, theIJ cannot affirmatively recognize the claimant as a citizen but may terminate theRemoval Proceedings pending definitive resolution of the claim by USCIS andpotentially AAO or even the U.S. District Court or Circuit Court of Appeals. When anIJ does NOT credit a citizenship claim, such claim will first be reviewed by the BIAand then may be raised directly to the Circuit Court of Appeals. Anyway, getting backto the I-485, there are certain forms of “relief from removal” that ONLY an IJ cangrant. One of them is cancellation of removal and adjustment of status [see INA §240A].2 These decisions are issued in the name of the officials known as Service Center, Field Office,and District Directors.3 I would say also the AAO is not necessarily bound by BIA decisions in certain circumstancesor on certain issues UNLESS that Precedent Decision is affirmatively endorsed or adopted by theA.G. as a matter of law which is clearly and affirmatively stated as binding on the Secretary ofHomeland Security as per the INA § 103(a)(1) proviso language. Page 2 of 4
  3. 3. BIA Appellate Jurisdiction Over IJs Denial of AdjustmentThe appellate body within EOIR is the BIA. This structure allows for an appeal to theBIA from an IJ’s denial of adjustment of status whether that denial is from an originalor renewed adjustment application. The BIA also has specifically delegated appellateauthority over most family-based immigrant petitions, which are within the soleoriginal jurisdiction of USCIS. Specifically, these are the family based requests viaUSCIS Form I-130, Petition for Alien Relative. The I-130 is limited to mostimmediate relative and preference family classifications. The division of appellateauthority was originally established when the A.G. was in charge of the now defunctINS. The AG further divided appellate authority by regulation when the EOIR wasestablished in 1983. The BIA had been a quasi-autonomous arm of INS from 1940when it was transferred from the authority of the Secretary of Labor to the A.G until1983 when EOIR was established. Under the Homeland Security Act of 2002 (HSA),abolished INS and created DHS, it also affirmatively recognized and establishedEOIR within DOJ by statute. HSA affirmatively retained all existing appellateauthorities which had been established by prior regulation except as had beenaffirmatively shifted elsewhere in the statute. Certain statutory authority shifted to thecomparable newly established inheritors and/or successors within the new or altereddepartments and agencies. The aftermath is still being sorted out a decade later. AAO Appellate Jurisdiction Over Denial of AdjustmentCertain “family” classifications are filed on other forms instead of the I-130 and areappealable to AAO, such classifications include VAWA claims and orphan petitions.Denial of these may be appealed to the AAO in the first instance. There are otherobscure situation where the adjustment applications may be appealed to AAO in thefirst instance. One of the most obscure involves a concurrently filed I-130 for a spousewhen the “adjustment” is denied solely for failure to prove the bona fides of themarriage. I find this to be complicate and unclear. On the one hand, the I-130 is reallywhat is being denied for lack of a bona fide marriage but the regulation seems to vestthe appellate review with AAO. This is in conflict with BIA’s authority over I-130s.This is a messy area that is deserving of a joint rulemaking between DOJ/EOIR andDHS/USCIS.AAO does have very clear appellate authority over certain other adjustments.Legalization (old and newer versions), Cuban Adjustment Act, Section 13 Diplomats,NACARA?, Indochinese (I am not sure about Lautenberg Amendment cases), and Page 3 of 4
  4. 4. certain Class Action Settlement Agreements (CSS, ABC, etc...) vest either INS orUSCIS and thereby AAO with original appellate jurisdiction. AAO Jurisdiction by CertificationOne old INS regulation that still gets plenty of use by USCIS is the one that allowsany decision to be “certified” to AAO for review of the intended or recommendeddecision of the official below. See 8 CFR § 13.4. This catch-all allows for the AgencyHead or any of the specifically delegated Officials to “certify” not only individualdecisions bit “classes of decisions”. I don’t think USCIS has used this authority asmuch as it probably should. I feel that certain specific types of cases that meet specificcriteria should be automatically certified to AAO for review. AAO has appellateauthority over all employment-based immigrant petitions or waiver applications, andmany involve an adjustment application. However, AAO does not have direct reviewauthority over the I-485 BUT when an associated petition or waiver application isdispositive of the outcome for the adjustment, then such denied I-485s are routinelyreopened and reconsidered sua sponte as a matter of routine, and if otherwise eligible,they are usually granted. This is not a right and it must remain that way. Sua sponteauthority cannot be mandated and cannot be reviewed. To say otherwise makes itNOT sua sponte at all. ConclusionAside from the few oddball situations already mentioned, the vast majority ofadjustment (I-485) denials have no appeal rights. This is so because adjustment itselfis a discretionary decision in the vast majority of cases. A rather ubiquitous blurbfound d in many AAO decisions sums up the current situation as follows. The granting of appeal rights has a "substantive legal effect" because it is creating a new administrative "right," and it involves an economic interest (the fee and costs). "If a rule creates rights, assigns duties, or imposes obligations, the basic tenor of which is not already outlined in the law itself, then it is substantive." La Casa Del Convaleciente v. Sullivan, 965 F.2d 1175, 1178 (1st Cir. 1992) All substantive or legislative rule making requires notice and comment in the Federal Register.While I am not advocating the creation of appeal rights, I feel that the general AAOReform Rule which is now six months overdue should make some clarifications onthis and related topics.That’s my two-cents, for now. Page 4 of 4

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