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DOUBLE STANDARDS - BEYOND THE LAW OF THE CASE –
USE OF UNPUBLISHED OPINIONS IN DENIALS AND BRIEFS
By Joseph P....
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“… The fact that the Administrator's policies and standards are not
reached by trial in adversary form does no...
Page 3 of 8
The Fifth Circuit, in which Skidmore arose, now whistles a different tune than in
the original decision, in wh...
Page 4 of 8
“...[A] review of the totality of the record does not show that the Beneficiary has
attained this level of ach...
Page 5 of 8
Since then, new decisions have trickled forth from AAO but ever so slowly,
nowhere near the pace at which the ...
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given an opportunity to rebut such information or evidence and
present evidence in his own behalf before the d...
Page 7 of 8
precedent decisions. The Fifth Circuit addressed this same basic issue in 2013, see
excerpt below. The vast ma...
Page 8 of 8
All-in-all, we have solid guidance about the interpretive value of various levels of
adjudicative decisions fr...
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DOUBLE STANDARDS - BEYOND THE LAW OF THE CASE – USE OF UNPUBLISHED OPINIONS IN DENIALS AND BRIEFS

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DOUBLE STANDARDS - BEYOND THE LAW OF THE CASE – USE OF UNPUBLISHED OPINIONS IN DENIALS AND BRIEFS

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DOUBLE STANDARDS - BEYOND THE LAW OF THE CASE – USE OF UNPUBLISHED OPINIONS IN DENIALS AND BRIEFS

  1. 1. Page 1 of 8 DOUBLE STANDARDS - BEYOND THE LAW OF THE CASE – USE OF UNPUBLISHED OPINIONS IN DENIALS AND BRIEFS By Joseph P. Whalen (Friday, April 29, 2016) I. INTRODUCTION Have you ever tried to support your position by referring to an unpublished non- precedent administrative decision, or an unreported, lower court decision? And have you been summarily “poo-poo’d” even by the very court or administrative body that issued it? And have you nearly gone ballistic when that same court or administrative body uses the same level of unpublished non-precedent case decisions to deny a case, and later during appeals and motions, uses the same ammunition to uphold its denials and dismissals? And worse yet, how mad do you get when they use such unpublished non-precedent case decisions from OTHER courts or administrative bodies? Obviously, what is good for the goose, definitely ain’t so great for the gander! The above described inconsistencies are not a figment of my imagination. These things happen routinely in U.S. District Courts and various administrative agencies. Although the examples that follow are drawn primarily from immigration, naturalization, citizenship, and related cases; the reality goes far beyond that context. The weight, type, or level of support for a proposition in a brief, or as the basis for denial or dismissal, that comes from unpublished non-precedent decisions is only as good as its “power to persuade”. II. SKIDMORE DEFERENCE A stated above, those non-binding decisions which are only as useful as their “power to persuade” may nevertheless be accorded what is known as Skidmore Deference, so named after the case of Skidmore v. Swift & Co., 53 F. Supp. 1020 (N.D. TX 1942)1; aff’d 136 F.2d 112 (5th Cir. 1943)2; reversed 323 U.S. 134 (1944)3. 1 https://scholar.google.com/scholar_case?case=7274167543407335557&hl=en&as_sdt=6&as_vis=1&oi=scholarr
  2. 2. Page 2 of 8 “… The fact that the Administrator's policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable and in some cases decisive weight to Treasury4 Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin. We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. at p. 140. The binding power of a U.S. District Court decision is similar to an unpublished (non-precedent or summary calendar) decision of the Circuit Court of Appeals, AAO, or the BIA, in that such decisions merely embody, and are enforceable as, the “law of the case” and nothing more. AAO revels in reminding Officers, Counsel, and its customers (petitioners and applicants) that they are not bound by such decisions (even if considered “precedential” in that particular U.S. District Court). Unfortunately, AAO rarely, if ever, discusses the persuasiveness of such decisions in light of Skidmore, when presented with arguments based on them. Instead, AAO falls back on 8 C.F.R. § 103.3(c) for the proposition that unlike official precedents, its own non-precedents are not binding; period — the end. Additionally, when I searched posted AAO decision for “Skidmore”, the most recent decision in which it appeared is dated April 5, 2013. It was an EB-3 case that was denied for an inability to pay the proffered wage. However, in that non-precedent decision, AAO did not cite the case for the concept of “Skidmore Deference”. Instead, the case was cited in order to discredit the claim to a valid employer-employee relationship. 2 https://scholar.google.com/scholar_case?case=3553764356719429271&hl=en&as_sdt=6&as_vis=1&oi=scholarr 3 https://scholar.google.com/scholar_case?case=3762971005508365670&hl=en&as_sdt=6&as_vis=1&oi=scholarr 4 While Skidmore dealt with Treasury Department interpretations, the principle applies across the entire executive branch.
  3. 3. Page 3 of 8 The Fifth Circuit, in which Skidmore arose, now whistles a different tune than in the original decision, in which the Administrator’s interpretations were given no weight. “… Although our general review of legal issues is de novo, interpretations of immigration law issued in a non-precedential single-member opinion of the BIA (as this opinion was) are entitled to Skidmore[FN]4 deference: The court should defer to them to the extent that they are well reasoned, thorough, and persuasive. Rodriguez-Avalos v. Holder, 788 F. 3d 444, 449 n.8 (5th Cir. 2015).” 5 [FN]4 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Samuel Gomez v. Loretta Lynch. –F. 3d— (5th Cir. 2016)6 [No. 14-60661 April 20, 2016] Slip Op. at p. 6 III. DOUBLE STANDARD AAO seems to have no qualms about citing to, and quoting from, non-binding, non-precedential U.S. District Court decisions that support its position. I will be the first to grab any useful analysis from a lower court decision that was affirmed by a Circuit Court or the Supreme Court, but AAO will rely upon them whether affirmed or not, and without discussion of Skidmore deference. Many petitioners’ Counsel and AAO cite various portions of the memorandum decision in the “extraordinary ability” visa petition case of Buletini v. INS, 860 F. Supp. 1222, 1230-31 (E.D. Mich. 1994)7 i.e. single award satisfies "prizes or awards" criterion at 8 C.F.R. § 204.5(h)(3)(i). Buletini, an Albanian physician specializing in nephrology (study of the kidney), revolutionized the delivery of certain medical services in his home country, was denied visa classification by INS, lost before AAO, but won in court. Both sides in subsequent battles over this visa classification find things in that case to support their positions. The government routinely gives unequal weight to the arguments of petitioners versus its own, even though both are drawn from the very same case. Hypocrisy anyone? Double standard? 5 Footnote 8 from Rodriguez-Avalos reads: “In Dhuka we reasoned that a three-member panel opinion, unless it is designated to serve as one of the “‘precedents in all proceedings involving the same issues or issues,’” is not precedential and not entitled to Chevron deference. Dhuka, 716 F. 3d at 156 (quoting 8 C.F.R. § 1003.1(g)).” Dhuka v. Holder, 716 F.3d 149 (5th Cir. 2013) http://www.leagle.com/decision/In%20FCO%2020130503118/DHUKA%20v.%20HOLDER 6 http://www.ca5.uscourts.gov/opinions/pub/14/14-60661-CV0.pdf 7 http://www.leagle.com/decision/19942082860FSupp1222_11918/BULETINI%20v.%20I.N.S.
  4. 4. Page 4 of 8 “...[A] review of the totality of the record does not show that the Beneficiary has attained this level of achievement or is renowned, leading, or well-known in the field, which is necessarily broader than his limited niche of Assyrian singers. Cf. Buletini v. INS, 860 F. Supp. 1222, 1229 (E.D. Mich. 1994) (finding that the petitioner's field was medical science rather than nephrology and that "medical science already narrows his field down from the more general field of 'science"').” Matter of D-, ID# 13836 (AAO Oct. 5, 2015)8 at p. 7. I am forced to ask how AAO arrived at the conclusion that the Beneficiary’s field “… is necessarily broader than his limited niche of Assyrian singers.” Why? I think it may be a stretch but Matter of D- had numerous issues preventing approval, so I am likely the only one to question that. Anyway, AAO cites to certain cases repeatedly such as Hristov v. Roark, No. 09-CV- 2731, (E.D.N.Y. Sept. 30, 2011)9 where plaintiff’s claims were deemed abandoned by the court because he failed to raise them on appeal to the AAO. AAO also often cites Systronics Corp. v. INS, 153 F. Supp. 2d 7 (D.D.C. 2001),10 a case wherein INS initially granted status as a multinational executive or manager under 8 U.S.C. § 1153(b)(1)(C) but later revoked the visa petition upon finding derogatory information indicating fraud. I have often referred to the EB-5 case of Al-Humaid v. Roark, No. 09-cv-982-L (N.D. TX, Dallas Div. Jan. 26, 2010)11 for the many and varied errors that Humaid made. IV. CHANGING WITH THE TIMES AAO non-precedent decisions became easily citable beginning in September 2015. This might have been a “happy coincidence” but it is more likely a natural progression in response to the organic growth in the use of such decisions as a source of guidance. There remain huge gaps in guidance for a multitude of benefit categories under the INA, at least in the form of Precedent Decisions from USCIS (AAO). This “void” in guidance started to form in the 1980s, under Legacy INS with a wall going up in February 1989, lasting until mid-1998. Another severe drought then began which lasted until late 2010. 8 https://www.uscis.gov/sites/default/files/err/D8%20- %20Aliens%20of%20Extraordinary%20Ability%20or%20Achievement%20%28O-1,%20O- 2,%20and%20O-3%29/Decisions_Issued_in_2015/OCT052015_01D8101.pdf 9 https://scholar.google.com/scholar_case?case=1431764639804946654&hl=en&as_sdt=6&as_vis=1&oi=scholarr 10 https://scholar.google.com/scholar_case?case=10037981028080014453&hl=en&as_sdt=6&as_vis=1&oi=scholarr 11 https://scholar.google.com/scholar_case?case=14599137731693660446&hl=en&as_sdt=6&as_vis=1&oi=scholarr
  5. 5. Page 5 of 8 Since then, new decisions have trickled forth from AAO but ever so slowly, nowhere near the pace at which the former INS Officials used to produce Precedential guidance. Back in 2005, AAO was more dismissive of efforts to use its non-precedential decisions to build “persuasive” arguments. In all honesty, some of AAO’s attitude may have been justified when the points that were attempted to be made were few, far between, and poorly presented in sloppy legal briefs. Here is an example of an AAO response from a decade ago, followed by a more recent and more substantive response. “On appeal, counsel further contends that the director's denial of the petition without prior issuance of a request for additional evidence (RFE) contravenes established policy and basic due process. To support her claim, counsel cites Matter of Shen, 16 I&N Dec. 612 (BIA 1978)12, an unpublished AAO decision, and section 103.2(g) of the Citizenship and Immigration Services (CIS) Operating Instructions. None of these sources buttress counsel's claim. Matter of Shen concerned a district director's denial of a family-based immigrant visa petition filed by a mother on behalf of her biological child under section 203(a)(2) of the Act. The district director denied the petition due to the petitioner's failure to establish that the beneficiary was in fact her child through primary evidence. The Board noted that Taiwanese household registration extracts were official records comparable to birth certificates in their ability to establish a mother and child relationship and remanded the case to the district director to afford the petitioner the opportunity to submit additional evidence such as further household registration extracts or an explanation of why such evidence was unavailable. Shen is clearly distinguishable on both legal and factual grounds from the petitioner's case. The petitioner seeks eligibility under entirely different statutory and regulatory provisions than those at issue in Shen. Moreover, the director denied the petition based on the evidence submitted, not for lack of one crucial document such as the household registration extract referenced in Shen. Counsel's reliance on an unpublished AAO decision is similarly misguided. Pursuant to 8 C.F.R. § 103.4(c), designated and published decisions of the AAO are binding precedent on all CIS employees in the administration of the Act. However, unpublished decisions have no such precedential value. Counsel's citation of CIS Operating Instruction 103.2(g) is also inapposite. The portion of section 103.2(g) cited by counsel states: Unless information or evidence is classified, an applicant or petitioner must be advised, before a decision is rendered, of any derogatory information or evidence of which he is unaware and which is being considered as a basis for denial; and he must be 12 https://www.justice.gov/eoir/vll/intdec/vol16/2674.pdf
  6. 6. Page 6 of 8 given an opportunity to rebut such information or evidence and present evidence in his own behalf before the decision is made. This instruction explains CIS' duty under the regulation at 8 C.F.R. § 103.2(b)(16)(i) and is clearly inapplicable to this case. Nonetheless, counsel has quoted this portion of the instruction in a disingenuous manner by omitting the words "derogatory information" and "of which he is unaware." The director did not base his decision on any derogatory information or evidence of which the petitioner was unaware. Rather, the director determined that the submitted evidence did not establish the petitioner's eligibility.” Above found at: Mar012006_06B2203.pdf13, at pp. 9-10 “Also on appeal, the Petitioner cites one of our unpublished 2009 decisions, in which we reversed the Director's finding that that another petitioner had not been doing business for the required year. The Petitioner has furnished no evidence to establish that the facts of the instant petition are analogous to those in the unpublished decision. The record of proceeding related to the 2009 decision is not before us. However, based on the decision itself, the two cases do not appear to have closely similar fact patterns. In the 2009 case, our decision to withdraw the Director's decision rested on evidence that "the petitioner has expended millions of dollars in sales and marketing in order to launch its target brand in U.S. markets," while importing products through a third party while its own import license was pending. We concluded that "the promotion of a product through sales and marketing on such a large scale negates the director's finding that the petitioner is merely an agent or a shell company." In that case, we found that the Petitioner established a record of providing goods and services during the required timeframe. We can make no such finding in this case. Furthermore, while the regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding.” Matter of P-, Inc., ID# 15938 (AAO Mar. 28, 2016)14, at pp. 5-6. Quite a difference! V. A REVISED APPROACH Along with the new easy ability to cite to, and quote from, AAO’s unpublished decisions come significant questions. I am not referring to mechanical aspects but rather to the weight to be afforded to that which has been quoted from these non- 13 https://www.uscis.gov/sites/default/files/err/B2%20- %20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2006/Mar012006_06B2203.pdf 14 https://www.uscis.gov/sites/default/files/err/B4%20- %20Multinational%20Managers%20and%20Executives/Decisions_Issued_in_2016/MAR282016_01B4203.pdf
  7. 7. Page 7 of 8 precedent decisions. The Fifth Circuit addressed this same basic issue in 2013, see excerpt below. The vast majority of AAO’s decisions have been non-precedents, with only eleven precedents since 1989, through the date of this writing; and all of those since 1998, five in 1998, alone. There was a nine-year long void from 1989, through 1998, and then a twelve-year gap until 2010, with the remaining six precedents since October 2010. Since many of AAO’s non-precedents do, in fact, have much to offer by way of interpretive value, many are deserving of Skidmore deference as explained here. “The BIA's opinion in the present case was issued by a three-member panel, but it was not designated as precedential. As we will show, some of our sister circuits have declared that certain opinions of the BIA are not to be accorded Chevron deference and instead are to be given weight only under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944). Under this standard, the "weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id. The other circuits have dealt with opinions by a single BIA member, but the courts' analysis has relied on the fact the opinion was not precedential. That also is the case with many three-member decisions. Focusing on the precedential nature of the BIA decision is fairly recent. What apparently was an unpublished BIA opinion was given Chevron deference in I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S. Ct. 1439, 143 L. Ed. 2d 590 (1999). See Brief for Respondent at 23, I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999) (No. 97-1754), 1999 WL 26721 (stating that BIA decision was unpublished). Subsequently, the Supreme Court sharpened its focus in this area by holding that Chevron deference is allowed only when the agency action "carr[ies] the force of law": We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S. Ct. 2164, 150 L. Ed.2d 292 (2001).” Dhuka v. Holder, 716 F.3d 149, 154-155 (5th Cir. 2013)15 15 https://casetext.com/case/dhuka-v-holder-2#!
  8. 8. Page 8 of 8 All-in-all, we have solid guidance about the interpretive value of various levels of adjudicative decisions from both the courts and administrative agencies. Now is the right time for a healthy reminder of those interpretive values. While non-precedential, unpublished, and/or summary calendar, per curium decisions are not binding beyond that particular case, in a res judicata sense, they are not valueless either. Be not afraid to make the argument when it makes sense to do so. However, making pointless, bizarre, or outright ridiculous claims and disparate comparisons (apples to oranges) will be a waste of everyone’s time and might bring disciplinary action. That’s my two-cents, for now! Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The opinions expressed in my training & articles are those of me only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring16. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. I wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. I am an outspoken advocate for improved adjudications at USCIS. Lastly, I have been published in various immigration law outlets with 200 or so scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. Please click the hyperlinks above and explore my writings. Training is available for any subject under immigration and nationality law. NAICS Code: 611430 Professional and Management Development Training 16 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b- 2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b- 2)&f=treesort&edition=prelim&num=0&jumpTo=true

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