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Material Change v Authorized Modification Issue in EB-5 revised 12-13-2011


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Material Change v Authorized Modification Issue in EB-5 revised 12-13-2011

  1. 1. Material Change vs. Authorized Modification-When Is Something Administratively Final? Is Time of Filing or Time of Adjudication More Crucial? By Joseph P. WhalenIntroductionMaterial Change is a tricky concept no matter its context. With regard to discussions of materialchange in immigration proceedings, the vast majority of cases involve contested BIA dismissedappeals of Removal Orders and the impact of administratively filed Motions on the judicialPetitions for Review concurrently pending in the Circuit Courts of Appeals within the two-trackpath created by Congress. The AAO is not in the same situation as it does not have a dual trackto deal with. When something in the immigration benefits context is not administratively finaland cases are filed in District or Circuit Courts generally they get dismissed for lack ofjurisdiction, except for an occasional writ of mandamus. The AAO has much less direct case-law to draw from the Circuit Courts but there is not a total void.A major case of importance for the AAO, especially, but not exclusively, in the EB-5 context isChang v. United States of America, 327 F. 3d 911 (9th Cir. 2003)1, which states in pertinent parts: “The precedent decisions were issued subsequent to the INSs approval of Appellants I- 526 petitions. However, the INS applied the new criteria to the Appellants I-829 petitions. Prior to the district court hearing, it denied Appellant Yi Yuan Chiangs petition, as well as those of other similarly-situated non-plaintiffs, and placed the six other Appellants petitions on indefinite "administrative hold." The INS argues that, based on the precedent decisions, a review of Appellants I-829 petitions will not allow it to certify that Appellants have complied with the legal requirements of EB-5. At ¶ 6 Appellants brought suit to force consideration of their I-829 petitions based solely on the criteria that were in effect when their I-526 petitions were approved. They argue that the INS should review the I-829 petitions only for whether they made material misrepresentations in their I-526 petitions and whether they executed their proposed plans. ....” At ¶ 7This first excerpt, above pretty much sums up the crux of the matter in that case. The Court sidedwith the plaintiffs and found that INS could not do what it wanted to do in those cases. Thefollowing excerpt further clarified that I-526 petition approval coupled with successfulexecution of the plan presented therein would be a good predictor of removal of conditionsthrough approval of the subsequent I-829 petition. Chang turned Izummi against INS andsimultaneously reinforced it. The 9th Circuit disallowed INS’ desire to materially change the I-829 rules to be applied to an I-526 plan it reviewed and approved but locked the alien investorsinto their approved plans. The Chang plaintiffs however, were at the end of the process and hadfiled their I-829s when INS sought to make material changes to the rules. The new rules were1 Note: Corrections at bottom of page 6/top of page 7 Page 1
  2. 2. OK for prospective application to plans not yet approved. In reality, there is perhaps 2.5 to 3.5years between the filing of the I-526 and the filing of the I-829 petitions and some changes willhappen. That is the reason why the I-829 rules have some wiggle room built-in already. Changonly basically locks the investor into an approved plan but not necessarily to the plan asinitially filed. Please keep this in mind for later reference. “c. I-829 applications need not receive ab initio review. The crux of the governments position is that the Montgomery Ward retroactivity concerns do not apply to EB-5 applications, because EB-5 requires a "fresh demonstration of compliance with statutory standards at the I-829 stage." However, if I-526 approval is decoupled from I-829 approval, then petitioners whose I-526 petitions had been approved would have no reasonable reliance that the rules set out in 8 C.F.R. § 216.6 would not change in midstream. If, on the other hand, approval of the I-526 petition was an official provisional approval of the petitioners plan, contingent on its effectuation, then a retroactivity analysis is required.” At ¶ 51.Matter of Izummi, 22 I&N Dec. 169 (BIA 1998) held, in pertinent parts: (3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements. (9) The Service does not pre-adjudicate immigrant-investor petitions; each petition must be adjudicated on its own merits.Changing View of Material Change in the EB-5 ContextI have written before about how I disagree with the application of the “material change”prohibition within inapplicable contexts. I have to concede that it generally belongs in thepreference visa petition context. In family-based I-130 petitions, the familial relationship mustexist as defined in the INA at the time of filing. See Matter of Bardouille, 18 I&N Dec. 114 (BIA1981), Matter of Atembe, 19 I&N Dec. 427 (BIA 1986); and Matter of Drigo, 18 I&N Dec. 223(BIA 1982). The beneficiary’s education, work experience, and licensure must be in place whenthe labor certification or I-140 petition, as applicable, is filed in order to be properly classified asof the “priority date” in the job category as defined in the INA. See Matter of Wings Tea House,16 I&N Dec. 158 (Regl. Commr. 1977); Matter of Katigbak, 14 I&N Dec. 45 (Regl. Commr.1971). In addition, although the L nonimmigrant visa does not have a “priority date” at issue, itdoes have specific eligibility prerequisites. The L visa is for an “intra-company transferee” whowas already an employee for at least one year in the previous three and who will be employed ina capacity that is managerial, or executive or involves specialized knowledge therefore they arereliant on a specific pre-existing employer-employee relationship that must have been inexistence for a minimum prescribed period of time and in a certain role. See Matter of MichelinTire Corp., 17 I&N Dec. 248 (Regl. Commr. 1978). The nonimmigrant petitions like theimmigrant petitions do get adjudicated in a first-in, first-out processing queue. While there is nopriority date, there are still the general requirements as to the pre-existing relationships orqualifications as defined by statute, and as clarified through implementing regulations.Erratum Note: Corrections at bottom of page 6/top of page 7 Page 2
  3. 3. I have thought some more and modified my opinion on the “material change” and “eligibility atthe time of filing” issues specifically as related to stand-alone I-526 filings that include a“business plan”. After careful consideration, I now believe that certain stand-alone or non-Regional Center affiliated I-526 investors should have the same kind of leeway that I advocatefor an I-924 Regional Center application. This divergent treatment should not extend to RegionalCenter affiliated I-526 petitions because they already get it vicariously through the RegionalCenter.If the stand-alone investor or non-Regional Center investor group has not yet created therequired jobs upon filing, then the petitioner(s) must submit a comprehensive, detailed, andcredible business plan just like an I-924 applicant. When such a plan is in its infancy ordevelopmental stage, changes should not be precluded. This is because that stance is not helpfulin fulfilling clear Congressional intent of improving the economy and creating jobs in the U.S. Inaddition, the I-526 plan is a preliminary step that will require effectuation and submission offurther evidence as sufficient proof of full expenditure and job creation in a follow-upproceeding via an I-829. Lastly, the fifth preference employment-based visa category is quitedifferent from the rest of the employment-based categories. I admit that I have done furtherresearch into the history of the immigrant investor visa and this has shed more light on just howdifferent EB-5 is from the rest.A Brief Synopsis of the History the Immigrant Investor Visa2Congress did not create the immigrant investor classification, they merely codified it andmodified it twenty-four years after the fact in the Immigration Act of 1990 (IMMACT90).Previously, in 1965, Congress made a major overhaul of the Immigration and Nationality Act.That 1965 amendment did not include an immigrant investor visa category. The 1965amendment included an undefined category of “other qualified immigrants” among the“nonquota immigrants” newly renamed “special immigrants” in INA § 101(a)(27).Former INA §§ 203 (a)(3), (a)(6), (a)(8) [8 USC §§ 1153 (a)(3), (a)(6), (a)(8)] (1965)provided, in pertinent part: (a) Aliens who are subject to the numerical limitations specified in section 1151(a) of this title shall be allotted visas or their conditional entry authorized, as the case may be, as follows: ..... (3) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151(a)(1) or (2) of this title, to qualified immigrants who are members of the professions, or who because of their exceptional ability in the2 For a much more extensive review of the history and development of the Immigrant Investor Visa see: Note: Corrections at bottom of page 6/top of page 7 Page 3
  4. 4. sciences, or the arts will substantially benefit the national economy, cultural interests, or welfare of the United States. ..... (6) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151(a)(1) or (2) of this title, to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonable nature, for which a shortage of employable and willing persons exists in the United States. ..... (8) Visas authorized in any fiscal year, less those required for issuance to the classes specified in paragraphs (1) through (6) and less the number of conditional entries and visas made available pursuant to paragraph (7), shall be made available to other qualified immigrants strictly in the chronological order in which they qualify. Waiting lists of applicants shall be maintained in accordance with regulations prescribed by the Secretary of State. No immigrant visa shall be issued to a nonpreference immigrant under this paragraph, or to an immigrant with a preference under paragraph (3) or (6) of this subsection, until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 1182(a)(14) of this title [*INA § 212(a)(14)]. [Emphasis added.] *Former INA § 212(a)(14) was later transformed into today’s INA § 212(a)(5) and then as now dealt with labor certifications.Former INA § 212(a) [8 USC § 1182(a)] (1965) provided in pertinent part: "Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission in the United States;.... (14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skill or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed." [Emphasis added.]INS Created the Immigrant Investor ClassificationThe “investor visa” was created originally in 1966, by INS through regulation utilizing theAttorney General’s broad authority under INA § 103 [8 USC § 1103] by construing andinterpreting INA § 203 [8 USC § 1153] (a)(8)’s “other qualified immigrants” who coulddemonstrate that they did not require a labor certification from the Secretary of Labor. It was nottermed as a visa classification but rather as a “labor certification exemption”. It seems thatErratum Note: Corrections at bottom of page 6/top of page 7 Page 4
  5. 5. everybody needed some guidance on who the phrase “other qualified immigrants” actuallyapplied to. Who exactly were these “other qualified immigrants” that did not need a laborcertification?These visas were allocated under INA § 203 (a)(8) but issued as a “special immigrant” classfound in INA § 101(a)(27) [8 USC § 1101 (a)(27)]. The Immigration and Nationality ActAmendments of 1965 (Public Law 89-236, Sec. 8 (a)) renamed nonquota immigrants as specialimmigrants in INA § 101(a)(27). These special immigrants were eligible for visas and investorswere among these immigrants but defined in the regulation, not the statute.The original version of 8 CFR § 212.8 stated, in pertinent part: (b) Aliens not required to obtain labor certifications. The following members are not considered to be within the purview of section 212(a)(14) of the Act and do not require a labor certification: ....... (4) an alien who will engage in a commercial or agricultural enterprise in which he had invested or is actively in the process of investing a substantial amount of capital. [31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended at 34 FR 5326, Mar. 18, 1969][A modified version of this extraneous regulation is still in 8 CFR.]Compare & Contrast I-924 vs. Stand-Alone I-526Like an I-924, for a stand-alone I-526 there are no pre-existing relationships and precious fewspecific eligibility qualifications to be proven at this stage. A business plan which by its verynature is speculative and exists within an environment, in this case a democratic society with acapitalist free-market economy, that is at the mercy of overarching influences; some change,even of a material nature, is not unusual. The market forces at play in the business world can beheavily influenced by a wide array of unpredictable possibilities.While I strongly advocate for extensive advance planning and accounting for numerouscontingencies through the use of transparent complexity in formulating the plans presented in theEB-5 context, not all possibilities can be foreseen. Political maneuvers, important elections, a bigcompany going belly-up--for a variety of reasons; including illegalities (Enron), or having otherunforeseen calamities (BP Gulf oil-spill); wars, or man-made and natural disasters around theglobe (terrorist attacks; Icelandic volcanoes; storms in: Japan, Haiti, New Orleans; or MississippiRiver floods, etc...) cannot be reasonably forecast is an EB-5 business plan.On the other hand, it is perfectly reasonable for USCIS to to expect everyone to put forth up-front certain other evidence that is complete, valid, and legal, such as: transaction documentationand lawful financial documentary evidence of source and path of project funds. There is nosettled expectation that contract law or tax codes and banking regulations will change overnight.Erratum Note: Corrections at bottom of page 6/top of page 7 Page 5
  6. 6. If portions or aspects of such other evidence are changed during the preliminary phase, perhapseven at the insistence of USCIS in order to make it EB-5 compliant, then it is clearly NOT feelyopen to undisclosed and/or unauthorized material changes thereafter. However, as for thebusiness plan presented with a stand-alone I-526 that has not yet been effectuated or perhaps noteven begun in any respect, USCIS should not treat the stand-alone investor who is presentingthat plan any differently than a Regional Center sponsor who is also presenting a plan which issubject to change until such time as USCIS approves it.Harkening back to Chang, the investors at the I-829 stage were locked into their INS approvedplans. As AAO and BIA like to point out, the mere filing of an application or petition does notguarantee approval. Why should this same concept not extend to the business plan at time ofsubmission in this preliminary stage?I&N Precedent Decisions Of NoteMatter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010) held: (1) Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), provides that an employment-based immigrant visa petition shall remain valid with respect to a new job if the beneficiary’s application for adjustment of status has been filed and remained unadjudicated for 180 days, the petition must have been “valid” to begin with if it is to “remain valid with respect to a new job.” (2) To be considered “valid” in harmony with related provisions and with the statute as a whole, the petition must have been filed for an alien who is “entitled” to the requested classification and that petition must have been “approved” by a U.S. Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority under the Act.The second prong if applied to an I-526, would mean that one is entitled if they have put forth aplan and have enough lawful funds to invest. The I-526 and the plan submitted in supportthereof would only be valid if approved. Approval of the I-526 is contingent on a USCISOfficer approving the plan submitted as supporting evidence. An Officer may request furtherevidence or issue a notice of intent to deny and may consider any evidence and/or rebuttalreceived in response. It is clear that a plan in support of an EB-5 investment can be filed, altered,and then approved. Only after it has been reviewed and approved will the alien be somewhat“locked-in” except as already provided for in the I-829 regulations. (3) Congress specifically granted USCIS the sole authority to make eligibility determinations for immigrant visa petitions under section 204(b) of the Act. (4) An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days. [Emphasis added.]Erratum Note: Corrections at bottom of page 6/top of page 7 Page 6
  7. 7. The third and fourth prongs reinforce the propositions that filing alone is not enough to ensureapproval and USCIS has the final say on petition approvals. Just remember that the BusinessPlan is merely a supporting document submitted as one piece of evidence in a grander immigrantclassification petition context.The following is NOT the EB-5 Matter of Ho 1998 AAO Precedent Decision.Matter of Ho, 19 I&N Dec. 582 (BIA 1988)3 held, in pertinent parts: [emphasis added] (1) The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed.The first prong is akin to the termination of status that results when an I-829 for EB-5conditional residents or an I-751 for marriage-based conditional residents is denied. (2) Approval of a visa petition vests no rights in the beneficiary of the petition but is only a preliminary step in the visa or adjustment of status application process, and the beneficiary is not, by mere approval of the petition, entitled to an immigrant visa or to adjustment of status.The second prong is applicable across the board. Merely because a “relationship” exists; or abeneficiary has the required educational or occupational experience, i.e. “qualifications”; or aninvestment plan is presented and accepted; and thereby one has shown prima facie evidence ofeligibility for the desired visa “classification”; this does not pre-destine visa issuance to, oradjustment of status for, an alien who is inadmissible for some other reason. Nor does visaapproval and subsequent visa issuance or adjustment of status guarantee the lifting ofconditions on status later if conditions have not been fulfilled as required. (3) The realization by the district director that he made an error in judgment in initially approving a visa petition may, in and of itself, be good and sufficient cause for revoking the approval, provided the district directors revised opinion is supported by the record.The third prong is somewhat overstated for some cases especially when applied to EB-5 I-526investor petitions revisited at the I-829 stage on certain issues. One must remember that it is notan absolute foregone conclusion that just any old error is enough to revoke an approval orterminate status. For example, an approved methodology shall not be revisited absent materialmisrepresentation by fraud or concealment of material fact. EB-5 is loaded with assumptions,predictions, and projections based on a wide range of variables presented and interpreted in abusiness plan and supported by an economic analysis based on an econometric model. Soundbusiness judgment is always just that, a judgment. Hindsight re-assessment or re-analysis in theabsence of deceit is usually held to be arbitrary, capricious, or an abuse of discretion.3 Note: Corrections at bottom of page 6/top of page 7 Page 7
  8. 8.  The term "void ab initio", which means "to be treated as invalid from the outset", comes from adding the Latin phrase "ab initio" as a qualifier. For example, in many jurisdictions where a person signs a contract under duress, that contract is treated as being "void ab initio".  A proposition in law is that a courts (or an agency’s) jurisdiction may extend to encompass this power. Due to this, the appointed legal authority (a court or agency) may decide that a certain document, which purports to affect legal rights, or an act, which purports to affect legal rights, is or was null and void from the start, from its beginning, because of some vitiating element.In contract law, vitiating elements are generally accepted to include: 1) mistake by a party or in subject matter, 2) misrepresentation by a party or as to subject matter, 3) illegality of any kind, or 4) inequality of the parties.As applied to EB-5, obviously misrepresentation and illegality even when discovered long after-the-fact are pretty well settled as things that can blow up in one’s face and ruin a project foreveryone involved. The extent and nature of mistakes and inequality seem to still be in a state offlux within the EB-5 context. Mistakes in evaluating something that is only a judgment call tobegin with, if made without deceit, bias, or criminality should not be enough for revocation inand of themselves. However, the consequences of mistakes are another matter all together. Eachcase must stand up on its own merits (see ninth prong of Izummi). In other words, naive, unwise,or plain old stupid mistakes alone do not seem to be enough of an epiphany to invoke theSecretary’s, i.e. Director’s discretionary authority to revoke under INA § 205. (4) Doubt cast on any aspect of the petitioners proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.The fourth prong is a generally accepted prerequisite to any re-evaluation of what was alreadyapproved at an earlier stage of the process within the EB-5 context. In EB-5, this prong of thisholding heavily influences the application of the previous prong. Business decisions are loadedwith discretionary decisions and judgment calls based on assumptions and “doubts” abound. If arisky business is tried and succeeds, everybody is happy but when it fails, second-guessing canoverpower anyone and then the “If only...” mentality can take over. USCIS adjudicators havebeen urged not to turn mere doubts into suspicion in an irrational manner. (5) Evidence serving as the basis of a notice of intention to revoke approval of a visa petition need not have been previously unavailable or undiscoverable.The fifth prong as applied in the EB-5 context is important to an I-829 denial, which is akin toan I-526 revocation. When the evidence submitted with the Regional Center affiliated I-526 wasErratum Note: Corrections at bottom of page 6/top of page 7 Page 8
  9. 9. switched or materially altered from that which had been vetted and approved with an I-924 butthe deception or impermissible material change is not discovered until the I-829 stage of theprocess, USCIS is fully within its rights and authority to terminate status rather than liftconditions. “Fool me once shame on you, fool me twice shame on me.”As for a stand-alone I-526, even severe and gross departures from an approved plan might ormight not result in a denial of an I-829. Absent illegality, fraud, or misrepresentation; andprovided that the required amount of funds has been expended and the qualifying jobs haveresulted, conditions should be lifted. If not, what basis would USCIS use to refuse to liftconditions from status that would NOT be overturned as arbitrary, capricious, an abuse ofdiscretion, and contrary to law? (6) It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice.The sixth and last prong gets plenty of use across-the-board. As applied to an I-526 and a plansubmitted in support, RFEs and NOIDs can be used to address perceived problems with the planand thereby allow the petitioner to perfect the petition after filing. In either the I-526 or I-829contexts, outright lousy, unsupported explanations should not be accepted. SIDEBAR: Reading through a great many AAO decisions, I have noticed far too many unsupported assertions for my liking. It bothers me that so many people have become involved in EB-5 and persist in taking their clients down this path. I do not want to see a return to the “dark days of EB-5” when sleazy developers and assorted con artists nearly killed EB-5 and Regional Centers for good.The major differences between the I-924 applicant (and their EB-5 alien entrepreneurs) and thestand-alone I-526 investor who has not already created the required jobs at time of filing are: 1) The stand alone investor may not count any “indirect jobs” but as part of their plan could include some market research perhaps even including an economic analysis with such job projections. This does not mean the investor would even need to show it to USCIS, or that USCIS would have to consider it in evaluating the business plan. (But hey, if it supports the business plan .... Why not show it and why not check it out?). 2) The Regional Center applicant does not have to show the lawful source and path of funds for the individual investors for the Regional Center sponsored/coordinated EB-5 job creating projects supporting the I-924. However, every EB-5 investor must show the lawful funds evidence for the entire EB-5 project, including non-EB-5 investors’ funds, with the individually filed I-526 petition.Erratum Note: Corrections at bottom of page 6/top of page 7 Page 9
  10. 10. 3) A Regional Center affiliated project would likely have the non-EB-5 funds presented by the RC on behalf of the EB-5 investors in such a project while each individual RC- affiliated EB-5 investor will be submitting their own financial evidence with their own I- 526. Any investor not qualified on this issue merely gets kicked out of the project.That brings us to the end of the EB-5 article. The remainder is a collection of cases as eluded toin the introduction and included here for easy reference and to promote and facilitate furtherresearch on the topic of material change and how that term is defined in the Circuit Courts ofAppeals.The following excerpt is from: Finality and Reconsideration: What can courts review andwhen? In Immigration Litigation Bulletin, Vol. 15, No. 6, June 2011, By Terri Scadron,Assistant Director, OIL (DOJ, Office of Immigration Litigation). “.... The Third, Fifth, Ninth, and Eleventh Circuits have each held that the Board’s grant of reconsideration and issuance of a new decision does not defeat finality of the original order under review, unless the Board vacates or materially changes the original order. See Espinal v. Holder4, 636 F.3d 703 (5th Cir. 2011); Thomas v. Attorney General5, 625 F.3d 134 (3d Cir. 2010); Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008); Jaggernath v. U.S. Attorney General6, 432 F.3d 1346 (11th Cir. 2005).” [Emphasis added.]The above article was discussing certain procedural aspects of Petitions for Review of FinalOrders of Removal by the Circuit Courts of Appeals.In Thomas, the 3rd Circuit included this explanation of its rationale: “Here, there has been a change in the circumstances that existed at the time Thomas filed his petition for review, i.e., the BIA subsequently granted his motion for reconsideration. The BIAs mere grant of a motion for reconsideration, however, does not in itself render the petition for review moot. Rather, it is the substance of the BIAs subsequent decision, upon reconsideration, that determines whether there is still a live issue for the court of appeals to resolve. For example, if the BIAs subsequent decision substantively altered the ratio decidendi in its earlier disposition and operated to vacate the BIAs earlier decision, then the petition for review of the earlier decision is without effect because there is no longer any order or decision for the court of appeals to review. On the other hand, if the BIAs subsequent decision did not materially alter the rationale of the earlier ruling, that ruling remains effective and subject to judicial review by the court of appeals.”4 Note: Corrections at bottom of page 6/top of page 7 Page 10
  11. 11. In Espinal, the 5th Circuit adopted the position of retaining jurisdiction in the absence of the BIAmaking a material change or vacating the prior decision outright. “.... [U]nless the BIA’s new order vacates or materially changes its original order, the reviewing court continues to have jurisdiction over the petition. See Thomas, 625 F.3d at 141 (3d Cir.); Plasencia-Ayala, 516 F.3d at 745 (9th Cir.). We adopt this case-by-case approach, and hold that this court retains jurisdiction over a petition for review so long as the BIA’s grant of reconsideration does not materially change, or effectively vacate, the order under review.”The 5th Circuit explained the underlying BIA case in footnote no. 1, thus: “The BIA held that Espinal was ineligible for cancellation of removal because he is an alien convicted of an aggravated felony. An aggravated felony includes “a drug trafficking crime,” which in turn includes “any felony punishable under the Controlled Substances Act [CSA] (21 U.S.C. § 801 et seq.).” 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). The CSA provides that a conviction for a simple possession offense after “a prior conviction for any drug . . . offense chargeable under the law of any State” has become final may be punished as a felony. 21 U.S.C. § 844(a). Since this recidivist offense requires only one prior drug conviction, the presence or absence of Espinal’s 2005 conviction would not change the outcome of his petition. Although this reasoning was ultimately rejected by the Supreme Court, it was then sufficient that Espinal was convicted in 2007 for drug possession following an identical conviction in 2003. The BIA could thus abandon its reliance on the 2005 conviction without changing the substance of its decision.” [Emphasis added.]In Jaggernath (alternately spelled Jaggernauth), the soothsayers in the 11th Circuit found thatthey could divine the BIA’s intentions and thus retain jurisdiction and authority to continue itsreview and incorporate the updated BIA decision. “.... [W]e conclude that we have jurisdiction to consider this appeal, as the BIAs reconsideration order does not alter the November 14, 2003 order of removal or affect its finality. Thus, the November 14, 2003 order is a "final order of removal" for jurisdictional purposes. In addition, we agree with Jaggernauth that the BIA erred in concluding that she was removable because she had been convicted of an "aggravated felony" as defined by the INA.” ***** “We do not believe the BIA intended its second order to incorporate this new commentary into its original order or otherwise change the substance of the original order. The January 21 order explicitly upholds the November 14 order and concludes that the BIA "acted properly" when it issued the November 14 order, suggesting the BIAs intent was to leave the November 14 order, as well as the reasoning underlying the order, intact and unmodified.” [Emphasis added.]Erratum Note: Corrections at bottom of page 6/top of page 7 Page 11
  12. 12. In Plasencia-Ayala7, the 9th Circuit jumped on the bandwagon, stating: “We agree with the Eleventh Circuit’s conclusion. Where the BIA’s decision granting a motion for reconsideration expressly affirms the BIA’s prior decision and its analysis does not significantly differ, there is little reason to require “the petitioner to raise the identical issue again in a petition to review the BIA’s decision on the motion to reconsider.” Desta, 329 F.3d at 1184. Stone recognizes that Congress created parallel processes of administrative and judicial review of the BIA’s decisions to expedite the removal process. Once a petition for review has been filed, federal court jurisdiction is divested only where the BIA subsequently vacates or materially changes the decision under review.”In footnote no. 3, the 9th Circuit included the following weasel words: “We also note that the BIA is empowered to vacate its prior decisions, and has expressly done so on a number of occasions. See, e.g., Matter of Eslamizar, 23 I. & N. Dec. 684, 689 (BIA 2004); Matter of Ramos, 23 I. & N. Dec. 336, 347 (BIA 2002). Since the BIA has the power to vacate its decisions expressly, there is little need to adopt a rule that every grant of a motion to reconsider constitutes a de facto vacature of its prior decision.”In a review of a denial8 of forms I-601 and I-212 [but incorrectly filed among decisions relatingto form I-612 (Waiver of two-year home residency requirement of INA § 212(e))], the AAOinvoked certain reasoning from Plasencia-Ayala: “The AAO turns first to the issue of whether the applicant is inadmissible to the United States under section 212(a)(6)(B) of the Act, which states: Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the aliens inadmissibility or deportability and who seeks admission to the United States within 5 years of such aliens subsequent departure or removal is inadmissible. The AAO notes that, at the time the field office director considered the applicants Form 1-601 waiver application, the applicant had been removed from the United States in absentia and was, therefore, inadmissible to the United States for five years under section 212(a)(6)(B) of the Act. However, subsequent to the field office directors decision, on August 4, 2008, the immigration judge reopened the applicants removal proceeding. Several courts of appeals have held that a grant of a motion to reopen vacates a final order of removal, including the Ninth Circuit Court of Appeals. See Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008) As the applicant in the present case was ordered removed by an immigration judge in Las Vegas, within the jurisdiction of the Ninth7 Note: Corrections at bottom of page 6/top of page 7 Page 12
  13. 13. Circuit, the AAO finds that the immigration judges reopening of the applicants removal proceeding vacates his previous order of removal. Accordingly, the applicant has not been removed from the United States in absentia and is no longer inadmissible to the United States under section 2 12(a)(6)(B) of the Act.”Erratum Note: Corrections at bottom of page 6/top of page 7 Page 13