Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

My interpretation of the proper approach to benefits requests adjudications


Published on

  • Be the first to like this

My interpretation of the proper approach to benefits requests adjudications

  1. 1. My Interpretation of the Proper Approach to Benefits Requests Adjudications By Joseph P. Whalen (August 25, 2012)In order to understand your role as an adjudicator, you have to understand the contextappropriate to the particular task at hand. I feel that it is important to understand theopposing context, of requests for relief from removal (or affirmative BUT preemptivedeferred action).USCIS adjudications render decisions on affirmative requests for benefits madethrough the submission of applications and/or petitions by individuals, who claim tobe eligible and qualified for the benefits that they seek. It is the applicant orpetitioner’s burden to prove that they are entitled to and/or deserving of the particularbenefit that they have affirmatively requested.In contrast, in order to seek relief from removal, one must first be found removable.In the Removal Proceedings context, the initial burden is on the government toactually prove that the individual whom they seek to remove is: 1.) an alien, and 2.) is removable for some particular reason based in the law.Only if the government first proves its position is there any necessity to seek anyrelief. However, once that first phase has concluded and the alien is found removable,they might seek relief, IF any relief is even a possibility.Some forms of relief are actually benefits, which could have been soughtaffirmatively such as adjustment of status, or a determination on a claim tocitizenship. On the other hand, certain forms of relief are only available to anindividual who has already been found removable, i.e., withholding or deferral.Deferred Action for Childhood Arrivals (DACA) is an oddball situation, in thiscontext we may be working from a presumption of removability in most cases. Actual“removability” may or may not be a true circumstance for all DACA applicants butUSCIS should not concern itself with even trying to find any definitive answer at thispoint in time. IF someone who has applied for and received DACA relief shouldhappen upon an affirmative benefit at some point in the future, THEN let thatquestion be resolved at that time and in the appropriate context, as applicable.As stated before, USCIS primarily deals with “customers” who affirmatively seek abenefit under the Immigration, Nationality, Citizenship and related laws. Benefitscome in different “varieties”. Some benefits are bestowed as an “act ofadministrative grace” through a “favorable exercise of discretion”. That discretion isspecifically delegated to the Secretary by Congress through its Constitutionalmandates to control our nation’s borders and establish a “uniform rule ofnaturalization”. The Secretary has subsequently re-delegated certain duties and the Page 1 of 3
  2. 2. authority to carry them out, to USCIS as well as her sister agencies (ICE and CBP).Some benefits are discretionary but there are also legal entitlements. There is a hugedifference between discretionary benefits and legal entitlements. Entitlements involvealmost no discretion at all. If someone proves entitlement then it is his or her right toclaim it and you cannot say no. That said, certain steps along the way to the finaldetermination regarding an entitlement require the possession and use of soundjudgment.This is true even for the discretionary benefits. One must first prove “statutoryeligibility” to even apply for an exercise of discretionary authority. For example, ingeneral, you must meet some initial burden. Such burden might be meeting astatutorily prescribed and/or mandated prerequisite (condition precedent), or makingout a prima facie case for further consideration, or meeting an initial minimumthreshold requirement, or satisfying/answering an antecedent procedural question orissue. The Officer must be diligent but must also be fair in deciding if a first part of amulti-part adjudication has been been satisfied such that the process might continue.This requires sound judgment in a progressive adjudication framework.Judgment and discretion are NOT the same things although they may seem verysimilar at times. The distinctions between these parallel concepts are often at the heartof controversies and confusion or are in-contention. Judgment is a critical part ofweighing any evidence, and in benefits adjudication, most (but not all) cases demandthat the person seeking any benefit prove eligibility by a “preponderance of theevidence”.That phrase describes the most common “standard of proof” encountered by USCISOfficers in the benefits adjudication context. A few isolated requests will involvedifferent “standards of proof ”(by clear evidence, or by clear and convincingevidence, or specific evidence), but this discussion will not go so far as to discussthem in-depth.Just just one point to keep in mind is that quantity of “evidence” and quality of“evidence” are separate concerns. A large amount of useless clutter will not sufficewhen it does not contain “specific evidence” as demanded by statute and/or regulation.For example, if you have no divorce decree then you cannot prove that you aredivorced in all but the MOST OBSCURE of scenarios.The “preponderance” standard demands that the proper weight be given to theevidence submitted. The vast majority of the adjudications performed by USCIS andnearly all of those at Service Centers are decided on documentary evidence alone. Indetermining the value of the document submitted, the Officer is NOT exercising anydiscretion at all! That Officer is making a judgment call instead! Page 2 of 3
  3. 3. Sound judgment is not uniformly distributed at birth, it develops over time. Somefactors and conditions nurture sound judgment while other factors may hamper orquash its development.Certain educational systems are geared towards rote memorization and seek to preventindependent creativity. Such systems tend to hamper the development of a person’sability to properly exercise sound judgment later in life. Training can help to a certaindegree but cannot cure a lifetime of inadequate thought processes.Proper training is a necessary component to improve the quality of adjudications butmerely restricting Officers to formal classroom training alone is insufficient. On-going mentoring is a key component also but as the sole additional component, it toois not enough.Officers need to be able to engage in open discourse in order to keep abreast ofdevelopments in the law and various trends as they occur. Free and frank discussionof issues as they arise, helps to keep everyone informed and diligent. Knowing thatyour input will be welcome encourages you to offer it. These factors have influencedmy methods in training. One might say that one of my training presentations is: partlecture just to convey required information; and part discourse/dialogue, similar to theSocratic method of asking questions and encouraging responses to stimulate groupdiscussion or even some debates. The more views expressed the better and I feel thathaving a wide range of views openly expressed is better than isolating individualadjudicators who might go off on irrelevant or irrational tangents. I would rather havea regular mechanism in place to ferret out flawed adjudications instead of having alawsuit point out such a problem.That is a very brief introduction to my philosophy and approach to immigrationbenefits adjudication and training methodology. Page 3 of 3