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Examining the Roles of the Adjudicators in the Initial or RemandedProceeding vs That of the Administrative Appellate Body ...
change. Lastly, one particular situation which is a favorite of mine is when the Directorwants to deny an N-600 for a citi...
¶19 [W]hen the Board remands a case to an immigration judge for further proceedings, it      divests itself of jurisdictio...
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Examining the Roles of Immigration Adjudicators

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In the Administrative Immigration Appeals Context.
Read the AAO "DanceSport" Decision along with this.

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Examining the Roles of Immigration Adjudicators

  1. 1. Examining the Roles of the Adjudicators in the Initial or RemandedProceeding vs That of the Administrative Appellate Body on Review By Joseph P. Whalen (January 30, 2012)A recent case suggested an opportunity to discuss an issue of interest, so, here it goes.Edy Darcelin v. Atty Gen USA, Filed 01/30/12, No. 10-3674 (3rd Cir. Non-precedent) at:http://www.ca3.uscourts.gov/opinarch/103674np.pdf states: “An IJ’s discretion to enlarge the scope of proceedings on remand from the BIA is well-established. If, as here, the BIA does not limit a remand to a specific purpose, the BIA’s remand “is effective for the stated purpose and for consideration of any and all matters which the [IJ] deems appropriate in the exercise of his [or her] administrative discretion . . . .” Johnson v. Ashcroft, 286 F.3d 696, 701 (3d Cir. 2002) (quoting Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978)). The IJ properly exercised his discretion in limiting the scope of the remands to consideration of Darcelin’s eligibility for CAT protection. In this context, Darcelin’s due process rights were not violated.”The principal Third Circuit case cited Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002)dissects and discusses the BIA Precedent Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA1978). The selected passages from Johnson (excerpts shown further below) would likelybe of use to USCIS’ AAO in crafting a few of the points to be made in its upcomingRulemaking. AAO very frequently states that the new decision must be returned forreview on certification, sometimes regardless of outcome and other times only if adverse.Still others after further investigation, inquiry, or specific actions are followed.AAO is much more direct on the issue of retaining jurisdiction but does not frequentlyneed to confine the actions to be taken on remand. In essence, when AAO remands thenthe adjudicator below can start from scratch as AAO will perform full de novo review ifthe case comes back to it whether on appeal or certification (regardless if as ordered byAAO in the written remand order or in the Director’s discretion). On occasion, in specificcontexts or specific cases, AAO is very explicit on what must be done on remand.Specificity is often expressed when an N-600 denial is overturned and a Certificate ofCitizenship must be issued. Other explicit commands have included the issuance of anRFE in order to address something that was overlooked or when the wrong regulationswere used in the adjudication below. That “remand for RFE under correct regulations”situation happened in numerous Special Immigrant religious Worker I-360 petitions whenadjudicators were citing old outdated regulations after they missed a major regulatory Page 1 of 3
  2. 2. change. Lastly, one particular situation which is a favorite of mine is when the Directorwants to deny an N-600 for a citizenship claim based on clear and convincing evidence insupport of a finding of statutory ineligibility BUT the citizenship claimant has presenteda copy of a U.S. Passport. In such cases, AAO may command that the Directorcommunicate with the Passport Agency to see if they can and will revoke the erroneouspassport. Such communication being the proper course of action as stated in theAdjudicator’s Field Manual in the first place.Getting back to the pertinence of Johnson, the court stated a few pearls of wisdom: “¶1 Jimmy Johnson petitions for review of a Board of Immigration Appeals ("BIA" or "Board") order reversing a grant of asylum and withholding of deportation based on changed country conditions. ¶2 The BIA held that the Immigration Judge did not have jurisdiction over these claims at the time he considered Johnsons application for relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT")1 because the case had been reopened and remanded for the "sole purpose" of considering the CAT claim. The question before us is whether on remand the Immigration Judges jurisdiction was limited to the CAT issue. For the reasons below, we conclude that, in deciding that it was limited, the Board departed without reasonable explanation from its own policy that it established in Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978). Accordingly, the Petition for Review will be granted and we will vacate the Boards order and remand for further proceedings consistent with this opinion.” ***** “¶12 In its opinion, the Board began by citing the general rule that "a remand, unless the Board qualifies or limits it for a specific purpose, is effective for the stated purpose and for consideration of any and all matters which the Immigration Judge deems appropriate in the exercise of his administrative discretion or which are brought to his attention in compliance with the appropriate regulations." Citing Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978) (Boards emphasis). It then pointed out that the standards to reopen for relief under CAT are more easily satisfied than those to reopen for other purposes.” ***** “¶17 We begin our analysis with a discussion of the Boards opinion in Matter of Patel, 16 I. & N. Dec. 600, 1978 WL 36476 (BIA 1978), in which the Board established the standard for the scope of remand orders in immigration proceedings. While few cases or Board decisions elaborate on Patels standard, and its language is often quoted without elaboration,5 it is widely acknowledged to govern this situation. This is not disputed here: the parties and the Board simply offer competing interpretations of the standard the case sets forth.” “¶18 .... ..... Patel set forth the relevant test as follows: Page 2 of 3
  3. 3. ¶19 [W]hen the Board remands a case to an immigration judge for further proceedings, it divests itself of jurisdiction of that case unless jurisdiction is expressly retained. Further, when this is done, unless the Board qualifies or limits the remand for a specific purpose, the remand is effective for the stated purpose and for consideration of any and all matters which the Service officer deems appropriate in the exercise of his administrative discretion or which are brought to his attention in compliance with the appropriate regulations. ¶20 Id. at 601.” ***** “¶23 Patel itself does not elaborate on the concept of "express retention" of jurisdiction. After setting forth the test, it simply states that the remand order at issue was "not limited or qualified," bypassing analysis of "express retention." And, there is no caselaw discussing how we should interpret this language in this context. We thus turn for guidance to the common definition of "express" as "explicit," in contrast to implicit or inferred. Blacks Law Dictionary, for instance, defines "express" as "[c]lear; definite; explicit; plain.... Made known distinctly and explicitly, and not left to inference." BLACKS LAW DICTIONARY 580 (6th ed. 1990). Other dictionaries give substantially similar definitions. See, e.g., WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 803 (1993) (defining "express" as "directly and distinctly stated or expressed rather than implied or left to inference ... definite, clear, explicit, unmistakable"). ¶24 The most obvious way for a tribunal to "expressly retain jurisdiction" is by stating that it is doing precisely that. In In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 367 (3d Cir.2001), we characterized the district court as having "expressly retained exclusive jurisdiction" over certain settlement proceedings where its order simply stated that it "retain[ed] exclusive jurisdiction as to all matters relating to [settlement] administration." In re Prudential Ins. Co. of Am. Sales Practice Litig., 962 F.Supp. 450, 566 ¶ 10 (D.N.J.1997). And in other situations where the adjective "express" is used, we have viewed it as requiring an actual, stated reference or mention. In Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 141 (3d Cir.2001), for instance, we found no "express determination" that there was no just reason for delay where the district courts order did not use the phrase "no just cause for delay" or any similar statement.”While I generally like to point out that the BIA and AAO are qualitatively different innature, i.e. contexts, and belong to different adjudicatory systems, certain routineprocedural points apply to both. BIA reviews decisions reached in adversarialproceedings involving face-to face opponents in hearings. AAO performs faceless, paper-based reviews of mostly paper-based initial decisions in an inquisitorial system. Thatsaid, there is no need to re-invest the wheel in order to craft an AAO Reform Rule thathas been in the works off and on since 1995. Page 3 of 3

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