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Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 1 of 18
BIFURCATED ANALYSIS ON APPELLATE
REVIEW & MORE THA...
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USA v. Carlos Cruz-Reyes, No. 14-40376 5th Cir. Ma...
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heavily from the federal courts—including both, di...
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reasonable, substantial, and probative evidence on...
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(1) the nature and circumstances of the offense an...
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(B) that, except as provided in section 3742(g), i...
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These determinations tend to mix fact-finding with...
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The APA is the law used most of all in order to ch...
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In making the foregoing determinations, the court ...
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Even so, the district court imposed the same sent...
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more Guidelines cases than appellate courts do.” ...
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application is initially subject to a “Second Hea...
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The favorable factors in this matter are the appl...
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Kazarian Two-Step Analysis
" .... If a petitioner...
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some duds, so it is crucial to make decisions, as...
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Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006) incl...
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(3) In most administrative immigration proceeding...
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must stop. Please keep reading, studying, seeking...
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BIFURCATED ANALYSIS ON APPELLATE REVIEW

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BIFURCATED ANALYSIS ON APPELLATE REVIEW & MORE THAN MEETS THE EYE

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BIFURCATED ANALYSIS ON APPELLATE REVIEW

  1. 1. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 1 of 18 BIFURCATED ANALYSIS ON APPELLATE REVIEW & MORE THAN MEETS THE EYE By Joseph P. Whalen (Tuesday, June 23, 2015) INTRODUCTION Much has been said and written about the Burdens and Standards of Proof, but little ink has been spilled on the topic of “Standards of Review”. That goes for standards used in either an initial adjudication as to evaluating evidence or argument; or on appeal as to the soundness of judgment and any exercise of discretion in the decision below. There are a few administrative precedent decisions on topic but they sorely lag behind times. We need a fresh perspective in this area of administrative immigration law, especially regarding benefits determinations or requests for relief. With so few current and timely materials on topic coming from the administrative powers-that-be, I look to the judiciary for guidance and start with appellate review. Many courts such as the Fourth Circuit Court of Appeals defer to the agency’s factual findings under the substantial evidence rule, among others. Anim v. Mukasey, 535 F.3d 243, 252 (4th Cir. 2008). With so many places to start, I chose to start with an excerpt containing the term I used in the title of this article. While it is not a completely dominant theme throughout, I am leading with it because I found it intriguing and hope you do too. Enjoy!
  2. 2. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 2 of 18 USA v. Carlos Cruz-Reyes, No. 14-40376 5th Cir. May 18, 2015 (unpub): “This court conducts a bifurcated analysis of a sentence imposed by the district court. Gall v. United States, 552 U.S. 38, 51 (2007). We first determine if the district court committed any significant procedural errors, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553 factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If the district court’s decision is free of procedural error, we then consider the substantive reasonableness of the sentence. See United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). When, as here, the sentence is within the guidelines range, we afford it a presumption of reasonableness, which may be rebutted only by a showing that the sentence: (1) does not account for a § 3553(a) factor that should receive significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the § 3553(a) factors. See United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011).” At pp. 1-2 [Slight reformatting, highlighting, and links added.] The main process gleaned from the above excerpt is fairly simple. First, the reviewer looks for procedural errors. If one or more is found, the reviewer determines if it is significant or not. If it is significant then the prudent course is to remand the case for a do-over. If on the other hand there is no error or only a minor, non-dispositive error, the reviewer can proceed to an examination of the merits in a re-examination of evidence and in light of any arguments made on appeal (or motion). AAO versus BIA Working with what is available and familiar seems like a good place to start so that is what I will do. Since USCIS (primarily AAO) and EOIR (primarily BIA) decisions are usually subject to judicial review, I draw
  3. 3. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 3 of 18 heavily from the federal courts—including both, district and appellate courts and sometimes even the supreme court—for inspiration. I wish to make clear however, that the Standards of Review vary significantly between the BIA and AAO. I am more interested in how AAO reviews decisions but address some comments to the BIA where certain requests for relief from removal may parallel a benefit request. Some Basics of Appellate Review Courts and many administrative appellate reviewers tend to review the substantive reasonableness of a subjective finding-of-fact or mixed questions of facts applied to law, or in other words judgments, for reasonableness and soundness using a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). Gall was actually addressing the reasonableness of sentences imposed for criminal convictions. However, the sound principle espoused by the Justices lends itself well to civil immigration proceedings also. Reasonableness is needed in all legal contexts so it pays to seek guidance from our highest court. Another Supreme Court decision specifically addresses the reasonableness of fact-finding in the asylum context and is drawn nearly verbatim from old statutory language. Perhaps the reader will recognize parts of this oft-quoted passage. “Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is a “refugee” as defined in the Act, i.e., an alien who is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” § 101(a)(42)(A), 8 U. S. C. § 1101(a)(42)(A). See INS v. Cardoza-Fonseca, 480 U. S. 421, 423, 428, n. 5 (1987). The BIA’s determination that Elias- Zacarias was not eligible for asylum must be upheld if “supported by
  4. 4. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 4 of 18 reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U. S. C. § 1105a(a)(4). It can be reversed only if the evidence presented by Elias-Zacarias was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300 (1939).1 * * * * * 1 Quite beside the point, therefore, is the dissent’s assertion that “the record in this case is more than adequate to support the conclusion that this respondent’s refusal [to join the guerrillas] was a form of expressive conduct that constituted the statement of a ‘political opinion,’ ” post, at 488 (emphasis added). To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it—and also compels the further conclusion that Elias-Zacarias had a well-founded fear that the guerrillas would persecute him because of that political opinion.” INS v. Elias-Zacarias, 502 U.S. 478 (1992) at p. 481. SUBJECTIVE DECISIONS: Discretion versus Judgment The sentencing factors that were being applied in Gall are reproduced below. The level of soundness in rendering judgments, and the style of adjudication; in evaluating sentencing factors are similar to the exercise of discretion in determining eligibility for most waivers under the INA, because they are principally subjective findings-of-fact. Those immigration practitioners or adjudicators out there who are reading this, should already be familiar with the various precedents enumerating the laundry lists of factors used in determining hardship. Remember that mixed questions of law and fact rely upon a demonstration of sound judgment, if one does not have it then everybody loses because it will take extra time, money, and efforts to get to the truth of the matter at hand. Compare for yourself. 18 U.S.C. § 3553 Imposition of a sentence (a) Factors To Be Considered in Imposing a Sentence.-The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider-
  5. 5. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 5 of 18 (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for- (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines- (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); (5) any pertinent policy statement- (A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
  6. 6. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 6 of 18 (B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced. [should be semicolon, not period] (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. OK, so what was the point in that lengthy build-up? The following test for reasonableness is favored among the Circuit Courts. Take a look. “The purpose of the district court’s statement of reasons is to enable the reviewing court to determine whether, as a matter of substance, the sentencing factors in section 3553(a) support the sentence. United States v. Long Soldier, __ F.3d __, 2005 WL 3501337, *2 (8th Cir. Dec. 23, 2005); see Unites States v. McBride, No. 04-4347, slip op. at 3, __ F.3d __ (6th Cir. Jan. 17, 2006) (holding that “a sentence should reflect the considerations listed in § 3553(a)”). We agree with the framework articulated by the Eighth Circuit in assessing the reasonableness of a court’s statutory support. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). A non-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it: (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors. See id.; Long Soldier, 431 F.3d at 1123-24 (applying the "Haack test for reasonableness" to a non-Guidelines sentence).” [Slight reformatting added for emphasis with links added.] United States v. Smith, 440 F. 3d 704, 708 (5th Cir. 2006) slip at pp. 6-7 As A Matter Of Substance Drawing from Long Soldier, supra, I believe it is necessary to examine the concept embodied in the phrase “as a matter of substance”. In that case the issue was determining whether the resultant decision—a sentence— was “substantially reasonable or not”. In other cases, “substance” equates to an evaluation of the characterization of evidence as “substantial”.
  7. 7. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 7 of 18 These determinations tend to mix fact-finding with an application of the law to those facts, in combination with: an exercise of appropriate and authorized discretion, and/or an application of sound judgement; in order to reach the ultimate conclusion, based upon reasonable inferences, draw from the relevant and credible evidence. Depending on the specific context, pertinent issues, and controlling law; the mode and level of review will vary. Keeping the review on track can be quite a challenge. Deciding How To Proceed Can Be Hard To Do There are some obvious and some not-so-obvious ways to go about reviewing a case. How will you review the burden of production, the burden of persuasion (collectively, the burden of proof); select the correct standard of proof; decide how to weigh the evidence and credibility, then the commensurate fact-finding, the legal interpretations as to elements to be proven; the analysis; and decision? Aaargh! AAO has not issued its long awaited rulemaking and in the absence of its own regulations has relied on a hodge-podge of sources, but ultimately it boils down to reviewing everything de novo. AAO itself is subject to judicial review and the courts usually rely on their own rules, precedents, and various statutes. Many Federal Courts have subject matter jurisdiction over some actions under 28 U.S.C. § 1331 (federal question jurisdiction) when a plaintiff’s claims arise under the laws of the United States, specifically the Immigration and Nationality Act ("INA") [8 U.S.C., Chapter 12] and related agency regulations [8 C.F.R., Chapter I], and the Constitution of the United States. Courts may also find jurisdiction under 5 U.S.C. § 500, et seq. (Administrative Procedure Act ("APA")), 28 U.S.C. §§ 2201 (Creation of Remedy) and 2202 (Declaratory Judgment Act), or 28 USC § 1361 (Mandamus Act).
  8. 8. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 8 of 18 The APA is the law used most of all in order to challenge final agency actions. Chapter 7 is the source of the familiar refrain that the agency action is arbitrary, capricious, and/or an abuse of discretion, among other things. 5 U.S.C. § 500, et seq. (Administrative Procedure Act (APA)) [Hyperlinks below.] CHAPTER 7—Judicial Review Sec. Sec. 701. Application; definitions Sec. 702. Right of review Sec. 703. Form and venue of proceeding Sec. 704. Actions reviewable Sec. 705. Relief pending review Sec. 706. Scope of review 5 U.S.C. §706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
  9. 9. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 9 of 18 In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.) Precedents and Persuasive Case-Law As another alternative, case-law is frequently used by AAO whenever that serves its purposes best in a particular situation such as the following examples. AAO does not restrict itself to citing precedents only. AAO’s decision are first appealed to a District Court for review of a final agency action under 5 U.S.C. § 700 et seq. Unlike the Fifth Circuit in this excerpt, AAO can and usually does review everything de novo and is not bound to uphold any aspect of the decision below. This first excerpt does reflect many, but not all, BIA reviews of IJ decisions if the word “Guidelines” were replaced with rule, law, statute, regulation, or agency policy. “… We review the district court’s application of the Guidelines de novo and its factual findings for clear error. United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th Cir. 2012).” At p. 2 USA v. Rafael De la Cruz-Bautista, No. 14-41035 (5th Cir. June 15, 2015) [From the Summary Calendar] “On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term. That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment. The sole issue in this appeal is whether that sentence is substantively unreasonable.” At p. 2 ******* “Before Rosales-Bruno was resentenced, the probation office amended the PSR and recalculated his guidelines range without the 16-level crime of violence enhancement. The result was a range of 21 to 27 months.
  10. 10. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 10 of 18 Even so, the district court imposed the same sentence as before, relying on the § 3553(a) factors to vary above the new guidelines range by 60 months. The court did so after conducting a full resentence hearing, during which it pointed to several factors supporting the upward variance under § 3553: (1) the history and characteristics of the defendant, (2) the need to promote respect for the law, (3) the need to provide adequate deterrence, (4) the nature and circumstances of the present offense, and (5) the need to protect the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C).” At p. 7 [Slight reformatting added for emphasis.] ******* The Supreme Court has instructed us that when reviewing an out-of- guidelines sentence for reasonableness, we may: consider the extent of the deviation, but [we] must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The reason we give district courts so much discretion in making sentencing decisions is that they have great advantages over appellate courts when it comes to sentencing. One reason is that they do it and we don’t. Because the district court conducts sentence hearings, it is in a better position to make sentencing determinations than we are. See id. As the Supreme Court has explained, “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case” because he “sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. at 51, 128 S. Ct. at 597 (quotation marks omitted). Another advantage that district courts enjoy when it comes to sentencing is that they have far greater sentencing experience than appellate judges, many of whom have never sentenced a single defendant for a single crime. (At the time he resentenced Rosales-Bruno, the district court judge had twenty years federal sentencing experience.) On a related point, the Supreme Court has pointed out that district courts “see so many
  11. 11. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 11 of 18 more Guidelines cases than appellate courts do.” Id. at 52, 128 S. Ct. at 598 (quotation marks omitted). Appellate courts see only the sentences that are appealed. District courts also see the ones that are not.” At pp. 10-11 United States v. Rosales-Bruno, No. 12-15089 (11th Cir. June 19, 2015) Compare and Contrast AAO and BIA Rosales-Bruno serves to remind us that when the initial adjudicator interacts with the applicant, petitioner, or beneficiary, (s)he is in a better position to judge certain aspects of the case—demeanor, body language, tone of voice, overall credibility of oral testimony. Where the initial adjudicator does not interact with anyone face-to-face, then a full de novo review is more appropriate. AAO rarely reviews any case where there has been any face-to-face interaction in the prior proceeding. It is this major factor that really separates the AAO from the BIA. The BIA primarily reviews the decisions of Immigration Judges who do see respondents face-to-face. BIA regulations restrict how it reviews an IJ’s fact-finding—they do so for “clear error”. When the BIA decides appeals on family-based immigrant petitions that had been denied by USCIS, it does so in a full de novo review, just like the AAO reviews those USCIS decisions over which it has appellate jurisdiction. In these full de novo review situations, the appellate bodies have the power to grant or deny a benefit/relief (such as a petition or waiver, or lifting of conditions, or grant adjustment, withholding, cancellation, or TPS) or, order removal (BIA) or effectively place someone on the path to an NTA (AAO). In short, their decisions directly affect a person’s liberty interests. Those USCIS proceedings that normally demand a face-to-face interaction have recourse to a face-to-face review. The N-400 naturalization
  12. 12. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 12 of 18 application is initially subject to a “Second Hearing” as the result of filing a Form N-336. That review is with a different USCIS Officer in an additional interview/examination which can be ad hoc or full de novo. After that, a judicial review is available in a District Court and also provides for face-to- face interaction. The I-485 application for adjustment of status (AOS), except for a small percentage of cases-mostly employment-based cases, also require an interview. Requests for asylum also demand an interview, sometimes several. AOS, asylum, and requests to lift conditions are subject to being renewed before an Immigration Judge in another face-to-face interaction. To illustrate a point about which type of review is used in various situations, see the following excerpt. This is from an AAO non-precedent of the appeal of a denial of an I-212 “waiver” application which cites to a precedent. As you can see, AAO is referencing one precedent on topic that includes a laundry list of ten factors to be weighed, as applicable, among other factors, in other laundry lists, in other precedents. Since the adjudication below did not require an interview, full de novo review by AAO was perfectly appropriate. In this case, AAO even issued its own RFE! “In Matter of Tin, 14 I&N Dec. 371 (Reg. Comm. 1973), the Regional Commissioner listed the following factors to be considered in reviewing an application for permission to reapply for admission: The basis for deportation; recency of deportation; length of residence in the United States; applicant's moral character; his respect for law and order; evidence of reformation and rehabilitation; family responsibilities; any inadmissibility under other sections of law; hardship involved to himself and others; and the need for his services in the United States.
  13. 13. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 13 of 18 The favorable factors in this matter are the applicant's family ties to the United States and the applicant's apparent lack of a criminal record. The unfavorable factors are the applicant's entry into the United States without inspection in 1983; the applicant's failure to depart the United States pursuant to the deportation order; and periods of unlawful presence in the United States. The applicant has not provided sufficient documentation in response to the RFE, on appeal, or with the Form I-212 submission, establishing by supporting evidence that the favorable factors outweigh the unfavorable ones. In application proceedings, it is the applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. ORDER: The appeal is dismissed.” MAY142015_01H4212.pdf at p. 4 Caution Is Needed At Each Step Full de novo review can be somewhat intoxicating and can go to one’s head. It can be problematic if any reviewer loses their impartiality and/or has an agenda that leads them astray and beyond appropriate limits. I wrote about one such problem previously.1 That prior article looked at the disfavored and prohibited “divide-and-conquer” approach to examining evidence on review. Another way to look at that prohibition is to think in terms of a “seek-and-destroy-mission” rather than an impartial review in search of the truth of the matter. As I have also previously written, the adjudications being performed by USCIS are properly described as inquisitorial rather than adversarial in nature. To put it as simply as possible, these inquisitorial adjudications are searches for the truth of the matter, no more, no less. 1 See http://www.slideshare.net/BigJoe5/prohibited-divide-and-conquer-analysis-in-appellate-review
  14. 14. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 14 of 18 Kazarian Two-Step Analysis " .... If a petitioner has submitted the requisite evidence [required by 8 C.F.R. § 204.5(h)(3)], …[then]… USCIS determines whether the evidence demonstrates both a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained national or international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. § 1153(b)(1)(A)(i)." At p. 3437 See: Kazarian v. USCIS, 596 F. 3d 1115 (9th Cir. 2010) While it was not unforeseen or earthshattering, the 9th Circuit, through Kazarian, sort of gave the immigration bar a slap in the face while delivering a slap on the wrist to USCIS and AAO. The “dive-and-conquer analysis” approach used to be prevalent in one particular context in which this mentality had reared its ugly head far too often, namely the extraordinary ability immigrant visa classification (EB-1A) petitions. Service Center adjudicators and AAO Appeals Officers were trapped in the “divide-and- conquer analysis” mode until the Ninth Circuit, having learned from its own past mistakes, spoke up in Kazarian and later upheld that approach when it was very successfully applied in Rijal v. United States Citizenship & Immigration Servs. 772 F.Supp. 2d 1339 (W.D. Wash. 2011), aff’d No. 11- 35249 (9th Cir. June 13, 2012). The Ninth Circuit adopted as its own, “the well-reasoned published opinion of the district court.” A Few Administrative Precedents Of Interest The following are just a sampling of administrative precedents that address powers on review. They are a mixed-bag that offer some gems and
  15. 15. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 15 of 18 some duds, so it is crucial to make decisions, as to which to utilize, with great caution. Why so much hemming and hawing? Well, that is because prior to March 2003, the Department of Homeland Security did not exist. INS and EOIR were both within the Department of Justice. In that now-defunct pre- DHS immigration legal landscape, I&N Decisions were issued by the Attorney General, BIA, a variety of INS Officials and finally, AAO. The major change to today’s situation is the complete absence of the wide variety of Officials as had been the case under INS, AAO remains active for DHS. Theoretically, the DHS Secretary and ICE’s Student and Exchange Visitor Program’s (SEVP’s)-SEVP Appeals Team (SAT) could also submit decisions for publication but it has not happened yet. While, I have included some decisions that guide appellate review, AAO needs to issue more precedents to guide USCIS in its still relatively-new role as a Benefits Determination Agency instead of an oft-twisted arm of a law enforcement agency. However, there are still useful concepts available if you look hard. Matter of Burbano, 20 I&N Dec. 872 (BIA 1994) held in pertinent part: (1) When the Board of Immigration Appeals reviews a discretionary determination of an immigration judge, it relies upon its own independent judgment in deciding the ultimate disposition of the case… Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998) held in pertinent part: (2) Where evidence from the United States Department of State indicates that country conditions have changed after an alien's departure from his native country and that the Peruvian Government has reduced the Shining Path's ability to carry out persecutory acts, the alien failed to establish a well-founded fear of persecution in Peru. (3) An alien who failed to rebut evidence from the United States Department of State indicating that the Shining Path operates in only a few areas of Peru did not establish a well-founded fear of country-wide persecution in that country.
  16. 16. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 16 of 18 Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006) included this notable footnote 1: "The respondent filed his Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) after September 25, 2002. Accordingly, the "clearly erroneous" standard of review provided by 8 C.F.R. § 1003.1 (d)(3)(i) (2005) will be applied to the Immigration Judge's findings of fact pursuant to 8 C.F.R. § 1003.3(t) (2005). See also Matter of S-H-, 23 I&N Dec. 462,464 n. 2 (BIA 2002)." Matter of S-H-, 23 I&N Dec. 462, (BIA 2002), held: Under new regulations that become effective on September 25, 2002, the Board of Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. Matter of Vilanova Gonzalez, 13 I&N Dec. 399 (BIA 1969), and Matter of Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded. Matter of S-H-, 23 I&N Dec. 462,464 n. 2 (BIA 2002), stated: 2 The final rule provides that 8 C.F.R. § 3.1(d)(3)(i) “shall not apply to appeals filed before September 25, 2002.” 67 Fed. Reg. at 54,905 (to be codified at 8 C.F.R. § 3.3(f)). The Department determined that “it would be more efficacious simply to continue the current scope of review standards for pending cases, and to apply the clearly erroneous standard only to the review of immigration judge decisions in those appeals filed on or after the effective date.” 67 Fed. Reg. at 54,899 (Supplementary Information…[J. Applicability of Procedural Reforms to Pending Cases]…). The remaining provisions of 8 C.F.R. § 3.1(d)(3) will apply to all cases pending as of September 25, 2002. Matter of Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), held, (1) For purposes of establishing the requisite continuous residence in naturalization proceedings pursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b) (2006), a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated in the United States and trades its stock exclusively on U.S. stock exchange markets. (2) When an applicant’s employer is a publicly held corporation that is incorporated in the United States and trades its stock exclusively on U.S. stock markets, the applicant need not demonstrate the nationality of the corporation by establishing the nationality of those persons who own more than 51% of the stock of that firm. Matter of Warrach, 17 I&N Dec. 285, 286-87 (Reg. Comm’r 1979), clarified.
  17. 17. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 17 of 18 (3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought. (4) Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989), followed. (5) If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition. In keeping with the spirit of the fifth prong of Chawathe, AAO has been very firm on that point and remanded numerous cases. The flaw that led to many remands was a lack of specificity in the written denial decisions. AAO has determined, in various non-precedential decisions, that the adjudicator had failed in their affirmative duty to explain2 in decisions as to how and why the evidence was insufficient. CONCLUSION I started out talking about “bifurcated analysis” and took you on a trip that led down many different paths. I hope to have imparted a sense that “it’s just not that simple”. No matter what “it” is, there is usually more than meets the eye. Whether you are reviewing the “reasonableness” of fact-finding or of inferences or of exercises of discretion or of the conclusions drawn; or in determining the “soundness” of judgment; or whether evidence is “substantial” or not; or if there has been a “procedural error”, or an error as to judgment; or a “clear error” in something; this could go on and on but I 2 See http://www.slideshare.net/BigJoe5/l1ab-remand-affirmative-duty-to-explain-aao-oct072014-01d7101 and/or OCT072014_01D7101.pdf
  18. 18. Contact: joseph.whalen774@gmail.com Tuesday, June 23, 2015 Page 18 of 18 must stop. Please keep reading, studying, seeking answers, and asking questions! Remember, if you don’t all that stuff, then you can’t complain!

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