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Due Process, Hidden Gems, and the Devil in the Details                            By Joseph P. Whalen (May 6, 2012)Introdu...
Precedents of NoteMatter of Wong, I&N 14 Dec. 199 (BIA 1972) held:      Since a visa petition involving a claimed adoptive...
When a Chinese female is married she retains her original family name and      adds the suffix "Shee." The name "Leung She...
Matter of To, I&N 14 Dec. 679 (BIA 1974) held:     Where the Board of Immigration Appeals remanded the record for petition...
reopening of the proceedings in the instant case, upon motion of the Service,      subsequent to the District Directors or...
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Due Process: Hidden Gems and the Devil in the Details


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Due Process: Hidden Gems and the Devil in the Details

  1. 1. Due Process, Hidden Gems, and the Devil in the Details By Joseph P. Whalen (May 6, 2012)IntroductionIdeally, in any legal proceeding everyone will be approaching the matter within thesame procedural framework which is clearly spelled out in advance thereby puttingall parties on notice of all requirements and expectations. If it were only thatstraightforward then things would be much simpler than they really are. Howeverthe various forms which immigration proceedings may take tend to involve highlyvariable and continually evolving levels of complexity. Even where clear-cutprocedures exist, the specific facts of the particular case may present a uniquequestion or issue or fact pattern that either never came up before or must beaddressed under a new or changed statute or intervening legal interpretation.BackgroundSome guidance does exist for the various immigration proceedings but theprocedural matters addressed within existing regulations has become stale and hasnot kept pace with reality 1. This situation should soon change. While the BIA has afairly recently revised framework in-place which has been updated to account formany changes, even they are constantly in a state of flux procedurally. The U.S.Supreme Court has recently quashed a particularly BIA-beloved approach, namely:the “comparable grounds” test for INA § 212(c) threshold legal eligibilitydeterminations. See Judulang v. Holder, Attorney General, 565 U. S. ____ (2011) 2[Decided December 12, 2011].USCIS’ AAO has been in need of its own set of regulations for a very long time.For many years, the AAO has relied on a jumble of borrowed regulations as wellas administrative and judicial precedents of variable and/or limited value. This isdue for a change. DHS published its intent to issue a Notice of ProposedRulemaking for AAO. The NPRM was supposed to be published in March 2012,but is now overdue. We must wait and see what eventually happens.1 While other policy and procedural guidance does get updated more quickly, website updates,manuals and memoranda, or even form instructions incorporated by reference as per regulationdo not carry the same force as APA promulgated regulations.2 See: Page 1 of 5
  2. 2. Precedents of NoteMatter of Wong, I&N 14 Dec. 199 (BIA 1972) held: Since a visa petition involving a claimed adoptive relationship must be considered from a factual point of view to determine if the claimed familial relationship is established, the instant visa petition to accord beneficiary fourth preference classification on the basis of her claimed adoption in Hong Kong in 1951 by the U.S. citizen petitioners wife (allegedly unmarried at the time) is remanded to the District Director to make appropriate findings as to the factual validity of the adoption, with particular attention to the exploration of questions raised by certain factual discrepancies relating to identity of the parties and the existence of the adoptive relationship, and to require the submission of supporting secondary evidence in the form of affidavits executed by petitioner and his wife, by witnesses to the adoption, and by relatives and neighbors. * * * * *Within the discussion of the Wong case, the Board noted the following: In the present case the District Director never reached the question of the factual validity of the claimed adoption and made no findings in that regard. Hence, there are no findings before us for review. We shall remand the matter to the District Director in order that he may make the appropriate findings. In doing so, however, we believe it proper for us to note certain factual discrepancies that our examination of the record has disclosed. In any case in which an adoption is claimed to have taken place, it goes without saying that the identity of the parties must be established with a reasonable degree of certainty. In the present case, which involves a written agreement of adoption, there is no evidence that the petitioners wife and the beneficiary are the persons named in the adoption papers. We note that the name of the adoptive parent is merely given as "Leung Shee." It is claimed that Leung Shee and Leung Wai Jun are the same person. Page 2 of 5
  3. 3. When a Chinese female is married she retains her original family name and adds the suffix "Shee." The name "Leung Shee," then, could relate to any married female of the Leung family. We note that the petitioners wife was allegedly unmarried at the time of the purported adoption. Therefore, she was not technically entitled to be called Leung Shee.While I include Wong for the importance of the emphasized points in the holding,it also contains another tidbit worthy of note as to a Chinese naming convention.Many such factoids may be gleaned from the plethora of administrative andjudicial precedent decisions across a wide-ranging scope of issues and matters.Matter of Treasure Craft of California, I&N 14 Dec. 190 (Reg’l Comm’r 1972)held: Since the burden of proof to establish eligibility for the benefits sought rests with petitioner, who seeks to accord beneficiaries classification as trainees under section 101(a)(15)(H)(iii) of the Immigration and Nationality Act, as amended, the contention that petitioner need only go on record as stating that training is not available outside the United States is rejected; likewise rejected is the contention that petitioner may rely solely upon his statement "on record" that beneficiaries will not displace U.S. workers, particularly when such statement is contradicted by other evidence of record. Accordingly, the petition is denied for failure of petitioner to submit an adequate training program, for failure to establish why the alleged training could not be obtained in beneficiaries country, and because productive employment is involved which would displace United States workers.The ubiquitous blurb for the above concept usually reads as follows: “Simply going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972).”It is noted that some concepts are reiterated in fresher decisions and may get re-adopted or attributed to a later more important decision. Page 3 of 5
  4. 4. Matter of To, I&N 14 Dec. 679 (BIA 1974) held: Where the Board of Immigration Appeals remanded the record for petitioner to be confronted with the material used by the district director in denying the visa petition and to be afforded an opportunity to rebut that evidence and to submit any additional evidence in support of the petition, the proper procedure for the district director thereafter was to enter a new order and make appropriate service on the · interested parties so that they could be made aware of the new decision and have an opportunity to challenge it on appeal if desired.Today we have 8 CFR § 103.2 Submission and adjudication of benefit requests. (b) Evidence and processing. * * * * * (16) Inspection of evidence. An applicant or petitioner shall be permitted to inspect the record of proceeding which constitutes the basis for the decision, except as provided in the following paragraphs. (i) Derogatory information unknown to petitioner or applicant. If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation, rebuttal, or information presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding.Matter of Mintah, I&N 15 Dec. 540 (BIA 1975) held: Once an appeal to the Board of Immigration Appeals from a District Directors order has been filed, the District Director loses jurisdiction. Any motions thereafter must be directed to the Board. Hence, the purported Page 4 of 5
  5. 5. reopening of the proceedings in the instant case, upon motion of the Service, subsequent to the District Directors order dated February 24, 1975 denying the visa petition for lack of prosecution, from which an appeal was taken to the Board of Immigration Appeals, and the District Directors second order of June 16, 1975, following the purported reopening, are nullities, notwithstanding the District Director "certified" his second decision to the Board.Matter of Aviles, I&N 15 Dec. 588 (BIA 1976) held: Since a District Director loses jurisdiction over a case once an appeal from his decision has been filed, and thereafter any motions must be directed to the Board of Immigration Appeals, the reopening of the instant proceedings by the District Director subsequent to the filing of petitioners appeal from the January 21, 1975 order of denial of the visa petition for lack of prosecution, was improper, and the District Directors second order subsequently entered on May 9, 1975, was of no effect.Matter of Li Ganoza, I&N 15 Dec. 593 (BIA 1976) held: Since Mexican divorce decrees are not recognized in the State of New York unless the petitioning spouse has appeared in person and the answering spouse in person or by attorney, and petitioner, a resident of New York, has stated under oath that he personally appeared in court in Mexico and initiated divorce proceedings against his first wife, the case, on appeal in visa petition proceedings, is remanded so that petitioner may offer additional corroborative evidence to establish compliance with the personal appearance requirement; so that the Mexican decree may be incorporated into the record file; and so that, all letters which pertain to this case may be located and similarly incorporated, a new decision thereafter to be entered by the district director and appropriately served on interested parties.This case involved an interesting factoid, but that was the way it was in 1976, whoknows what it is today? That is but one potential issue that would need fresh legalresearch. The older Precedents are chock full of interesting details, some of whichhave ceased to be of value and others that are overlooked as insightful bits ofwisdom that may still guide one in a particular case. Please have a closer look atolder Precedents and keep an open mind. Good luck! Keep reading. Page 5 of 5