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Comparing And Contrasting
Judgment vs. Discret...
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is just an educated guess. Then he was issued ...
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AAO Cases before the U.S. Federal Judiciary
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acquiescence to the AAO Decision (hopefully th...
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“…. Unsubstantiated assertions, improbable inf...
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one that would be suitable for summary judgmen...
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For EB-5 purposes we are looking and business ...
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The statement of the case should flow and lead...
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status under section 245 is a matter of admini...
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About the Author
Joseph P. Whalen, Independen...
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Comparing and contrasting judgment and discretion and objective and subjective in various immigration adjudication contexts


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Comparing and contrasting judgment and discretion and objective and subjective in various immigration adjudication contexts

  1. 1. Contact: (716) 604-4233 or (716) 768-6506 Page 1 Comparing And Contrasting Judgment vs. Discretion and Objective vs. Subjective in Various Immigration Adjudication Contexts By Joseph P. Whalen (July 13, 2014) Introduction I was re-reading a case and certain words and concepts kept rising to the surface and got me thinking about some other things I had read and written recently and well, this article is the result. I am writing in somewhat of a “stream of consciousness” mode or taking the reader along on my “train of thought”. Be forewarned, you must ford this stream or board this train at your own risk! Ready? Roll up your pant legs and all aboard. The case I was re-reading was something I had noticed someone else had chosen to view on July 10, 2014, among my over 1,300 items posted at It was Bedoya v. Att'y Gen'l (en banc rehearing denied) No. 11-10552 (11th Cir. 10-25-2012). I supposed that it should now be Hamlet Bedoya-Melendez v. U.S. Attorney General, 584 F.3d 12 (11th Cir 2012). [There are two links here in order to get you to both parts of the decision on the 11th Circuit website if you want clean copies without my comments as are in the first link in the prior sentence.] Anyway, I most certainly had no recollection what that case was about so I just had to look. It involved a request for special rule cancellation of removal by a Peruvian man that claimed he was a “battered spouse” following the quick separation after a quickie marriage that went south very fast. In six months they had parted and began the divorce process. As Judge Cox expressed it in the first decision, “when the honeymoon ended, the marriage quickly soured.” (May 17, 2012, is the “substantive” Decision, the October decision simply denied the request for rehearing en banc with one dissenting opinion.) The major issues involved in the case were: “(1) does the Board have discretion to decide if an alien is a battered spouse under [8 U.S.C.] § 1229b(b)(2); and (2) if the answer to the first issue is no, is Bedoya- Melendez a battered spouse under § 1229b(b)(2)?” Supra, at p. 4 (May 17, 2012). The answers were: (1) yes, and (2) no, by default, because that was what the BIA had determined in upholding the IJ. While USCIS meanwhile denied adjustment, it is not stated what the actual reason was. I am hazarding a guess that the “then” soon-to-be ex-wife withdrew the I-130. It
  2. 2. Contact: (716) 604-4233 or (716) 768-6506 Page 2 is just an educated guess. Then he was issued an NTA and applied for asylum but withdrew that (probably when the IJ told him of the dire consequences of a frivolous asylum application) and then he requested special rule cancellation of removal as a “battered spouse”. The IJ denied, the BIA upheld the IJ’s denial, and the 11th Circuit dismissed his petition then denied en banc rehearing. The more interesting aspect of the case which intrigues me is the dissenting opinion which I feel is a bit off-the-mark. It appears to me that the dissenting Judge was on a quest to decipher (or perhaps warp the meaning of certain terms used in) 8 U.S.C. § 1252(a)(2)(B) [INA § 242(a)(2)(B)], which reads: (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in sub- paragraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. That dissenting Judge in Bedoya, in my opinion, went off on a wild tangent in a very overzealous fashion in search of jurisdiction to perform a full de novo review of the fact-finding by the Immigration Judge. Please read it and decide for yourself. I wonder how often such a thing happens when AAO upholds an Adjudications Officer’s fact-finding and then that case winds up in a U.S. District Court.
  3. 3. Contact: (716) 604-4233 or (716) 768-6506 Page 3 AAO Cases before the U.S. Federal Judiciary How do District Judges review such cases? I have written about this topic previously.1 And what about those cases that wind up in a Circuit Court of Appeals? More on that later, below. I know that purely discretionary decisions such as, (and you probably guessed what I am about to use as an example here) AOS (Adjustment Of Status) via I-485 applications which are the prime example of something that District Judges will back away from. They will usually only ever entertain, let alone decide favorably for the plaintiff in, a mandamus request and only then in extremely prolonged cases. My favorite type of immigration case to discuss these days is a toss-up between citizenship claims and EB-5 cases, of all sorts. I think I will take a peek at the EB-5 realm because citizenship claim cases have specific statutory authority that addresses these issues directly for BOTH2 the District Courts and Circuit Courts of Appeals as well as specific directions when the Circuit Court should transfer a case to a District Court for fact-finding when a genuine issue of material fact is unresolved. EB-5 has no such statutory authority or “directions” on such matters. It’s all still getting hammered out rather piecemeal. There are statutory provisions backed up by regulations for when an I-829 is not approved and conditional status is terminated but they deal with the interplay between USCIS and EOIR Removal Proceedings. An I-829 Petition to Remove Conditions Reviewed in a Circuit Court of Appeals If a terminated EB-5 alien really wants to pursue their claim they have a bit of an administrative hassle to go through before they can reach a federal judicial court. By my reckoning and by all rights that federal judicial court will be a Circuit Court of Appeals on a Petition for Review (PFR) of a final administrative Order of Removal. It might be the case that more often than not such cases (I-829 Denials) get “certified” to AAO before terminating status and issuing an NTA (“Notice To Appear”) so that an IJ is more likely than not going to “rubber-stamp” the AAO determination. Such a case is then amenable to an appeal to the BIA. If the BIA upholds the IJ’s 1 SEE: nonimmigrant-worker-petition and and and 2 See 8 U.S.C. § 1503(a)[INA § 360(a)] and 8 U.S.C. § 1252(b)(5) [INA § 242(b)(5)].
  4. 4. Contact: (716) 604-4233 or (716) 768-6506 Page 4 acquiescence to the AAO Decision (hopefully the Immigration Judge (IJ) will have at least “incorporated it by reference” and the BIA follows suit via a summary Affirmance Without a separate Opinion or AWO) then in essence the Circuit Court of Appeals would properly have jurisdiction to review the AAO Decision. The AAO’s Decision itself could have incorporated much of the fact- finding by the USCIS Adjudications Officer and/or Team at either the Service Center or IPO (Immigrant Investor Program Office), or may have added to the record of proceeding (ROP). If the Circuit Court of Appeals found that the decision was arbitrary, capricious, an abuse of discretion, or contrary to law, etc…, it would likely have to follow that same pathway back down the line to get back the AAO. However, if something was “rubber-stamped as incorporated and accepted” on the way up, it could be just as easily “rubber-stamp remanded” back by from the BIA to the IJ who could administratively closed or terminate (without prejudice) the case and return it to USCIS/AAO per 8 U.S.C. § 1186b(d)(2)(C) [INA § 216A(d)(2)(C)] and 8 CFR § 216.6(d)(2), 8 CFR § 1240.6, 8 CFR § 1003.29, and/or 8 CFR § 1003.23(b)(4)(iv). [Sorry for the run-on sentences but this particular train of thought was like a heavily-packed freight train with only a few very large cars carrying way too much “baggage” for its own good!] An I-526 Immigrant Petition Reviewed in District Court Let’s take a look at: Al-Humaid v. Roark, Civil Action No. 3:09-CV- 982-L, (N.D. Texas January 26, 2010). As in Humaid, many such cases end up being decided on cross-motions for summary judgment. By “such cases”, I mean those cases that consist of mainly faceless, paper-based judicial reviews, of mainly faceless, paper-based administrative appellate reviews3, of mainly faceless, paper-based initial decisions of the adjudicating officer or team at a USCIS Service Center or at IPO. Are we all clear on that? Good. It has definitely become clearer and clearer, to me anyway, that the documentary evidence is the foremost consideration and must be of the highest caliber just as the Judge found it important to include the following gems in the Humaid Decision: “… [A] court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,150 (2000); Anderson, 477 U.S. at 254-55.” At 4. 3 When it is an AAO case, AAO can itself issue Notices of Intent to Dismiss (NOIDs) or Notices of Derogatory Information (NODIs) or Requests For Evidence (RFEs) and build up the Record of Proceeding (ROP).
  5. 5. Contact: (716) 604-4233 or (716) 768-6506 Page 5 “…. Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). …” At 5. Does anyone else see those two statements as setting the stage for a messy brawl? They sort of seem to be in conflict with one another. Of course, each side will try to characterize the other side’s statements as unsubstantiated, improbable, and unsupported. How then is the Judge to decide who is correct if (s)he cannot make credibility determinations and re-weigh at least some of the evidence? Now consider the fact that the Judge is going to have that brawl inside his or her head. It would seem easiest to just flat out accept the findings-of-fact from the initial adjudicator. It also seems quite clear to me that unless the “final agency decision”, no matter whether it be from AAO or the initial adjudicator, is well written such that the reviewing Judge has no qualms accepting the findings below, it might stand a chance of being sent back to the agency either for further action or as a clear defeat and therefore labeled as arbitrary, capricious, an abuse of discretion, and/or in clear contravention of the law. See 5 U.S.C. § 706. Backing up a bit, when I had to locate Anderson in order to put a hyperlink in that excerpt (to match the other linked cases), I found the referenced sentiment worthy of repeating here in its entirety: “Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: it makes no sense to say that a jury could reasonably find for either party without some …. benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986). The holding in Anderson is well worth the time and effort to review. It is easily understood and to the point. I am not going to make it too easy for you beyond providing the above hyperlinks. If this issue is of importance to you then, go read it, study it, and use it as best you can when preparing, adjudicating, or reviewing such a case. By “such a case” I mean
  6. 6. Contact: (716) 604-4233 or (716) 768-6506 Page 6 one that would be suitable for summary judgment based on cross-motions for same, by the trial judge, or reviewing magistrate, or before an administrative appellate body who has refused to grant a request for oral argument for that matter. It is noted that AAO rarely ever allows oral argument and even the “EB-5 Decision Board” seems to prefer telephonic discussions rather than face-to-face “interviews”. In sum, it would be a case that can be decided on an entirely paper record or cross-motions for summary judgment, which if you think about it describes the vast majority of benefits requests and/or relief requests types of cases under the INA in our inquisitorial rather than adversarial proceedings. The following is a handy little blurb that showed up in my e-mail during the course of writing this article which is dragging out a few days more than originally planned. Anyway, it comes from an unpublished fifth Circuit per curiam opinion from their Summary Calendar entitled: Fernando Chinchilla-Rodriguez v. Eric Holder, Jr., No. 13-60633 (5th Cir. July 11, 2014). “We review the denial of a motion to reopen “under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA’s decision must be upheld as long as it is not “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks and citation omitted). The BIA may deny a motion to reopen based on changed country conditions when, as is the case here, it concludes that the alien has not made a prima facie case that he is entitled to the relief sought. Panjwani v. Gonzales, 401 F.3d 626, 632 n.7 (5th Cir. 2005) (citing INS v. Abudu, 485 U.S. 94, 104-05 (1988)).” So from the above, I feel reassured saying that it is more likely than not, the best safest course of action to assume that AAO should probably include some language in its long overdue reform rulemaking, which sets some standards for its own appellate reviews. That way, the USCIS Adjudicators will be put on notice of what type of scrutiny their decisions will come under on certification or appeal. Additionally, practitioners and their clients--those would be the petitioners and their derivatives, dependents, and/or sponsored beneficiaries; applicants; and perhaps financial support “sponsors”, in other words--USCIS’ “customers”, would be on notice of the type of scrutiny their evidence, oral testimony and more often than not, written testimonials or affidavits and expert opinions consisting of a wide variety and array of documents, will be under.
  7. 7. Contact: (716) 604-4233 or (716) 768-6506 Page 7 For EB-5 purposes we are looking and business plans, economic analyses, economic impact reports, feasibility studies and investment- related paperwork such as: Limited Partnership Agreements, Subscription Agreements, Written Investment Offerings (PPMs or Confidential Memos in compliance with appropriate regulations of the SEC, FINRA, that various states wherein the investments occur etc…), and various other Contractual Agreements, including some form of EB-5 Investor “Group Consensus” on, or a formal written and legally executed, “Job Allocation Agreement”. One must not get overwhelmed or feel buried by this pile of paper. Just take it slow and be methodical when the developing the project and assembling the accompanying plans and documents. Remember to remain calm, take a deep breath (as needed) and take it slow and steady. From here on out, I’m going to actually address the things I included in the title of this article for the benefit of anyone who cares to read it. I am hoping that AAO, IPO, and the rest of USCIS,as well as IJs, the BIA, and even OIL take a look at this. Judgment vs. Discretion-AND-Objective vs. Subjective I am of the opinion that Judgment and Discretion are points of confusion for many people. It took me quite some time to figure it out. I have no doubt that certain others have come to the same conclusions about this topic that I have. Some folks, however, will undoubtedly be diametrically opposed to what I am about to present. Still other folks are currently on-the- fence and struggling to figure this stuff out in their own minds and determine how it applies to their job duties and functions whether as an adjudicator or immigration practitioner or even as the potential EB-5 self-petitioner or Regional Center applicant. I don’t want to add to their confusion. Instead it is my clear objective to methodically explain how I see it and gently try to push them off the fence on to my side. Is that bland and blunt enough for you? No subtlety is intended and hopefully none was achieved. It is my understanding that, within the realm of, benefits (or relief) request adjudications, a Sound Judgment is reached via deductive reasoning through the examination of an argument; or more to the point, through a qualitative analysis and evaluation of a brief and/or any written narrative explanation in whatever form and its supporting documentary evidence. That documentary evidence, hopefully, will have been assembled by means of an application of clear and succinct inductive reasoning such that the highlights and clearly highlighted, the low points are acknowledged and gently shoved aside, and the best evidence is clearly labeled and prominently presented while the logical argument is methodically and progressively articulated.
  8. 8. Contact: (716) 604-4233 or (716) 768-6506 Page 8 The statement of the case should flow and lead the adjudicator from one important point with its particular easily-located and clearly- referenced documentary proof to the next point along the way to the logical end result. The analysis and evaluation of the complex documentary evidence within the EB-5 context can be highly subjective in nature. I believe that in order to render a decision as to the acceptability of evidence as credible, that the adjudicator, and then perhaps a reviewer, will need to employ a set process. That process needs to be geared to the goal of properly evaluating the evidence within a clearly established frame of reference (i.e., “context”) as clearly presented within the benefit and/or relief request itself. That evaluation and the request must each utilize the “preponderance of the evidence” standard of proof. I believe that that standard is “relativistic” because it is ultimately a subjective judgment call whether to accept evidence and find a fact to be more likely than not true. Such findings are reasonably viewed as highly dominated by context (i.e., a form of, and a platform for, “nexus”). So then, if one can keep their analysis and evaluation in the proper context, then they can be more confident that they made the right call and can honestly say that they are truly seeing a nexus (palpable connectivity or causal connection) between the investment and the prospective positive economic effects, including jobs, created by it. Given the above discussion about Judgment being Subjective, what is left to talk about? By my reckoning, it is time to discuss Discretion, its proper exercise, and the concept of what is meant by “objective” within the context of this discussion. The two concepts of what is “subjective” and what is “objective” should be easier to reconcile in the reader’s mind than the differences between the exercise of “judgment” as opposed to an exercise of “discretion”. I figured I would cut you a break if you stuck with me this far and save the easier stuff for the end. In my mind it is clear that the exercise of judgment is a process. It is a progressive activity whereby one must make a judgment call which itself must be in keeping with the spirit of the statute, guided by the regulations and/or precedents, tempered with wisdom, and made within the proper context. It is clearly a subjective exercise based in deductive reasoning. One accepts or finds credible facts, and makes reasonable inferences, which lead one to a proper conclusion. An exercise of discretion has alternatively been described as an act of “administrative grace”. See Matter of Patel, 17 I&N Dec. 597 (BIA 1980). (“The grant of an application for adjustment of
  9. 9. Contact: (716) 604-4233 or (716) 768-6506 Page 9 status under section 245 is a matter of administrative grace. An applicant has the burden of showing that discretion should be exercised in his favor.” At p. 601.) Unlike making a “finding-of-fact” which is necessary to one’s (preferably deductive) reasoning process as required for the exercise of one’s own judgment, an exercise of discretion is a matter determined by policy. Faithfully adhering to an agency’s set policies is an objective mental exercise and is the fairest approach towards even-handedly handing out the “goodies”. The act of bestowing administrative grace in the name of an agency head (in the case of the USCIS adjudicator who is making and issuing an initial decision in the name of their particular Director or Chief, for USCIS it is ultimately the sometimes “unreviewable” discretion of the Secretary of Homeland Security (delegated downward)) which is almost universally being done in accordance with predetermined Policies via some form of “balancing or other test”. I said “almost universally” for a few reasons, including:  There still are matters of first impression for which no standard agency Policy has yet been set.  There may have been intervening changes to statutory law or through new precedents since the particular subject matter was last formally addressed by an agency.  There may be additional factors beyond what was previously addressed in a particular subject matter such that a clarification may be required.  I am sure that the reader may be able to think of additional examples not listed here. The exercise of discretion is predetermined by means of the application of set criteria that establish minimum (and sometimes “minimal”) eligibility requirements. In the alternative, certain facts or factors, may point to clear and certain ineligibility. When an actual adjudicator exercises the agency’s delegated discretionary authority in rendering a decision on an application or petition, (s)he is not making a real judgment based on their own personal standards. Instead, the exercise of discretion is being made in accordance with the policy decisions made at the highest levels of the agency, or department, or even the President. Policy decisions can be very political. n conclusion, it’s just not that simple! That’s my two-cents, for now!
  10. 10. Contact: (716) 604-4233 or (716) 768-6506 Page 10 About the Author Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 or (716) 768-6506 E-mail: web or DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly- individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the Internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.