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From Theory to Practical Application in EB-5                          By Joseph P. Whalen (July 19, 2012)Evidence BasicsTh...
Probing the Evidence & Questioning WitnessesEOIR produces a newsletter entitled: “Immigration Law Advisor” here is a small...
filing and acceptance of a form, do not expect to receive the “benefit of the doubt”based on a skeletal filing. Instead, y...
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From theory to practical application in eb 5


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From theory to practical application in eb 5

  1. 1. From Theory to Practical Application in EB-5 By Joseph P. Whalen (July 19, 2012)Evidence BasicsThe requirements and qualifications for any benefit, or form of relief, whether anentitlement or bestowed through a favorable exercise of discretionary authority,under the immigration, nationality, citizenship, and related laws of the UnitedStates must be proven through the submission of sufficient evidence. The forms thatthat evidence may take can range far and wide. Evidentiary requirements may bestatic, as in unchanging; narrowly defined and tightly confined; or they may bevague and hard to figure out, in other words; fluid, dynamic, or esoteric. The vastmajority of evidence utilized in this realm of INA and related adjudications isdocumentary. In certain specific contexts under the INA and related laws, evidencemay take additional forms. These include: oral and written, direct-personal or paid-expert testimony; or medical testing, such as: blood tests, DNA mapping; or evena broad range of forensics: determining the age of a “foundling” or “orphan” bymeasuring bone, hair, and dental growth rates; or authenticating a “certificate”.The adjudicator (an IJ or interviewing Officer) might be heavily influenced bybody language, candor, tone of voice, or other subtle indicators of demeanor.Lastly, newly prepared specialist or “expert” testimony and accompanying writtenreports may be offered in evidence. For cases within the EB-5 realm, businessmodeling and economic theory become very influential on the outcome.Applying Theory When Creating Supporting EvidenceAs indicated above, some of these “other forms of evidence” will result in writtenreports submitted as supporting evidence. Much of that evidence will be obtainedby hiring the needed expert to write something for a specific purpose. For example,an EB-5 Business Plan (BP) needs to conform to the specifications in Matter ofHo, 22 I&N Dec. 206 (AAO 1998) as well as the relevant statutory and regulatoryprovisions. An EB-5 BP is a foundational document upon which an economist willrely in order to perform and write-up an accompanying Economic Analysis (EA).The economist must also be provided with “specifications” as to the elements thatmust be addressed as per statute and regulations. When these two extremelyimportant players are not sufficiently informed of what their individual “workproducts” (BP & EA) must entail and encompass in order to serve their EB-5purposes, that situation will at least slow the adjudication process with RFEs orlead to denial by USCIS. Page 1 of 3
  2. 2. Probing the Evidence & Questioning WitnessesEOIR produces a newsletter entitled: “Immigration Law Advisor” here is a smallexcerpt from vol. 5 no. 6 (July 2011)1, wherein the lead article is: “The QualityThat Makes Something Worthy of Belief: REAL ID Credibility Standardsand the Parameters of Plausibility Findings” by Michele D. Frangella. “Reasoning is valid, cogent, and specific when it is based on permissible inferences. Permissible inferences are those which are drawn from and tethered to a properly developed record. Matter of Fefe, 20 I&N Dec. 116, 118 (BIA 1989) (stating that a full examination of an applicant is “essential”). In Li v. Mukasey, 529 F.3d 141 (2d Cir. 2008), the alien claimed that she was persecuted in China on account of being a practitioner of Falun Gong. Although the Immigration Judge found the respondent’s testimony to be “extremely vague and general,” neither the court nor counsel for the Government elicited further testimony from the respondent to fill in the factual gaps. The Second Circuit held that vague testimony alone cannot support an adverse credibility finding unless an attempt is made to solicit further detail from the applicant.” At p. 3USCIS, like any administrative agency, is required to be fair in its adjudications.An adjudicator cannot neglect to ask about an issue and then use the “failure” toprove something based on that issue as a basis for denial. Both the BIA and AAOhave reversed and remanded cases in such situations. Courts have reversed thoseadministrative appellate bodies when they have missed that type of mistake ormade it themselves.Building the Record of Proceeding (ROP)Anyone who has ever had any dealings with USCIS is likely familiar with theconcept of a “Request For Evidence” (RFE). In general, most USCIS formsinclude comprehensive instructions detailing the minimal initial evidence requiredto be included at time of filing. If initial evidence is insufficient to establish primafacie eligibility, USCIS is usually not obligated to request any further evidence andmay deny a case. This is especially appropriate when the evidence offered showsineligibility. Few things in life are so crystal clear that the question of eligibility orcertain ineligibility can be determined based solely upon the record at time offiling. With that said, if an underserved interim benefit would flow from the mere1 See: Page 2 of 3
  3. 3. filing and acceptance of a form, do not expect to receive the “benefit of the doubt”based on a skeletal filing. Instead, you can expect a denial or rejection based on afirm procedural stance. USCIS is within its rights to deny or reject a case based onthat rigid procedural stance. However, depending on the specific circumstances,USCIS might issue an RFE or even a Notice of Intent to Deny (NOID) instead.Any such RFE or NOID should clearly state the deficiencies in that case as well asin the evidence submitted so far, and that the failure to correct the deficienciesand/or supplement the record with needed evidence will result in denial.Evidence StandardsOnce evidence has been offered and accepted, it must be evaluated and weighedunder the correct standard of proof. In general, and unless stated otherwise, casesadjudicated under the various provisions of the INA and related laws are requiredto be decided based upon the “preponderance of the evidence” standard of proof.Persons seeking some benefit or relief under the INA need to meet that minimumin most cases. The various standards of proof and burdens of proof can sometimeconfuse people. While the “preponderance of evidence” is generally applicable, itis not a 100% catch-all standard. Sometimes eligibility demands “specificevidence” just to meet the “burden of proof” related to some aspect of the casewhether within an overall preponderance of the evidence standard or the “clear andconvincing” standard.Even when it is clear which standard applies to a case, certain related issues canstill leave one confused. Continuing with the EB-5 context as an example: Whatconstitutes a “reasonable methodology” for determining “indirect job creation” and“other positive economic effects”? EB-5 is also extra complicated because of itsmultiple steps. There is a statutory provision for an EB-5 visa which lists specificrequirements for obtaining the classification. Obtaining that classification is apreliminary step.Currently, the vast majority of EB-5 visas are issued to aliens who are affiliatedwith a Regional Center. The Regional Center designation is obtained from an evenearlier and quite separate adjudication process that does not involve anyoneseeking an EB-5 visa. The Regional Center sets the stage for its alien investors tomake qualifying pooled investments in support of their individual preference visapetitions. Then there are additional steps for the alien. The approved EB-5classification petition allows the alien to apply for an immigrant visa abroad oradjustment of status domestically. They get conditional status and have to get theconditions lifted nearly two-years after that. It is a 2.5 to 3.5 year+ journey. Page 3 of 3