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On the Record Considered as a Whole


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On the Record Considered as a Whole

  1. 1. On The Record Considered As A Whole: Individualized Analysis vs Considering the Totality of the Evidence vs Parsing Each Piece of Evidence By Joseph P. Whalen (May 4, 2012)Is what’s good for the BIA is also good for AAO? ~Sometimes Yes, Sometime No~There are both clear and stark differences and similarities; as well as subtlynuanced gradations, between the immigration-related contextual extremes when itcomes to weighing evidence or, in rendering a judgment. Striking a proper balanceas to the breadth of any analysis or within any subsequent review is not easy whencomparing these considerably unique administrative appellate bodies. Hopefullythings will improve when USCIS publishes its long overdue AAO Reform Noticeof Proposed Rulemaking (NPRM).That NPRM was anticipated in March 2012, as predicted in DHS’ Fall 2011:Regulatory Agenda and Regulatory Plan 1 which were published in the FederalRegister back in January 2012. Of course, such a rulemaking has been needed for amuch longer time. At the very least since 2003 when DHS was created, or 1994when AAU was altered in a DOJ Reorganization of INS and became AAO, orperhaps since 1983 when the Attorney General created EOIR by separating theBIA and Immigration Courts into as new DOJ Agency, and created the AAUwhich consolidated the remaining appellate reviews under one signatory authorityof one INS Official. All of that is water under the bridge, but the current effortcannot be allowed to, once again stall or worse, wither and die on the vine.How are the Courts viewing the roles of, and reviewing the decisions of these twoimmigration-centered administrative appellate bodies?The Eleventh Circuit recently (April 30, 2012) reiterated that: “..... Neither the IJ nor the BIA is required to address each piece of evidence individually, so long as they considered the issues raised in the motion and announced their decisions in a way that demonstrates they “heard and thought and not merely reacted.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010) (quotation marks omitted); Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006).” 21See!documentDetail;D=DHS-2012-0005-0001And!documentDetail;D=DHS-2012-0005-00022 Fernando Morales v. U.S. Attorney General, No. 11-13148, A097-640-165 (11th Cir. 04-30-2012) Page 1 of 5
  2. 2. The Seventh Circuit in Siddiqui v. Holder, 670 F.3d 736 (7th Cir. 2012)3 (January12, 2012) held, in pertinent part: “We are unable to affirm the AAO’s conclusion regarding Siddiqui’s failure to establish continuous residence because the AAO’s decisions lack individualized analysis and do not identify particular deficiencies in the substantial evidence submitted by Siddiqui. ....” [Emphases Added.]On jurisdiction to review, the Seventh Circuit had to be creative and needed thecooperation of the BIA in order to reach the underlying AAO decision: “We have jurisdiction to review both the deportation decision and the amnesty denials. Our jurisdiction to review the BIA’s deportation decision arises from the transitional rules of IIRIRA, § 309(c)(1), because the proceedings were commenced by an order to show cause issued prior to April 1, 1997, IIRIRA’s effective date. Our jurisdiction to review the AAO’s amnesty denials arises indirectly through our jurisdiction to review the deportation decision. See 8 U.S.C. § 1255a(f)(4)(A) (“There shall be judicial review of such a denial only in the judicial review of an order of deportation under section 1105a of this title (as in effect before October 1, 1996).”). The BIA’s reissuance of its deportation decision resolved many of the jurisdictional complexities of this case and brings the removal order and the legalization decisions properly before us.” [Bold emphasis added.]Once getting the case properly before it, the Seventh Circuit explained how itwould review the underlying AAO decision. “1. Standard for Establishing Continuous Unlawful Residence Judicial review of the denial of an application for legalization shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole. 8 U.S.C. § 1255a(f)(4)(B).3 Page 2 of 5
  3. 3. This standard of review has been characterized as “very narrow.” Ruginski v. INS, 942 F.2d 13, 16-17 (1st Cir. 1991) (“[I]t is not sufficient for the applicant simply to show that different conclusions might possibly be drawn from the evidence submitted in support of the application.”); see also Moosa v. INS, 171 F.3d 994, 1004 (5th Cir. 1999).2 Given Siddiqui’s status as a CSS class member, we also consider pre-IIRIRA law, which required decisions to be “supported by reasonable, substantial and probative evidence on the record considered as a whole.” See 8 U.S.C. § 1105a (a)(4) (1996); see also Toptchev v. INS, 295 F.3d 714, 720 (7th Cir. 2002). Under either deferential standard, we conclude that the AAO abused its discretion by disregarding the detailed evidence submitted by Siddiqui. Cf. Mema v. Gonzales, 474 F.3d 412, 419 (7th Cir. 2007) (“An applicant for asylum is entitled to a reasoned analysis, not one which wholly disregards relevant, probative evidence.”); Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 117 (2d Cir. 2007) (construing an IJ’s use of an “inappropriately stringent standard” as a legal error).” * * * * * ________________ 2 Both parties cite to precedents that we have set forth under related immigration laws with differing standards of review. We take these into account yet remain mindful that they are not binding here. * * * * *The Seventh Circuit also observed how some past mistakes made by INS stillhaunt USCIS today. Additionally and quite unfortunately, some adjudicators arestill trapped in the old INS mindset or as some call it: “The Culture of NO!”. “.... Further, we conclude that the AAO erred in applying IIRIRA’s definition to Siddiqui’s offense because Congress did not clearly express its intent to apply the definition retroactively to individuals such as Siddiqui, whose legalization applications would have been adjudicated prior to the enactment of IIRIRA if the government had not unlawfully refused in late 1980s to accept applications from applicants who had briefly left the country. ....” * * * * * Page 3 of 5
  4. 4. The Ninth Circuit recently added its voice to the chorus when it pointed out that“[t]he government’s position is unfair as well as erroneous.” That observationcomes from the published [precedential] case of Anderson v Holder, No. 07-74042(9th Cir. March 12, 2012)4, which additionally noted that: “[t]he government’s position is that the word “legitimation” should be read broadly when a broad reading results in the denial of citizenship, and narrowly when a narrow reading results in the denial of citizenship. ...” [Bold emphasis added.]The Seventh Circuit had a hard time reaching the case and that jurisdictional blipresulted in an oddly worded remand: “.... We therefore vacate the removal order and remand so that the AAO can properly address the evidence in support of Siddiqui’s claim of continuous residence.” [Bold emphasis added.]Even the unobservant should note that the Ninth Circuit was vacating the BIA’sdecision to uphold the IJ’s Removal Order, but through an uncertain administrativeprocess, the legalization decision would need to work its way back to AAO withinUSCIS. It is unclear exactly how that process would work in practical application.I initially started on this odyssey when I ran across a minor correction from theNinth Circuit 5 to another recent favorite. Specifically, their recent immigration-related collateral estoppel (or issue preclusion) case6: Oyeniran v. Holder, No.09-73683(9th Cir. March 6, 2012). I used that case as the starting point for anearlier article7 concentrating within the EB-5 context which is included in abroader (but shorter) discussion of various types of immigration cases. In thatarticle, I discussed how Removal Proceedings differ from affirmative requests forBenefits or defensive requests for Relief from Removal. I leave you with a side-by-side comparison of the Ninth Circuit’s correction.4 See: Anderson5 See: Oyeniran II6 See: Oyeniran I7 See: Immigration Daily: “Discussing District Court Standards In Reviewing USCIS DenialsOf Certain Applications & Petitions”,0504-whalen.shtm Page 4 of 5
  5. 5. Ninth Circuit Revisits OYENIRAN (Collateral Estoppel in Immigration Cases) May 4, 2012 Version March 6, 2012 VersionB. New Evidence that Arose after the B. New Evidence that Arose after theFirst Decision Impacts Deferral First Decision Impacts Deferral[6] The BIA erred when it reasoned that [6] The BIA erred when it reasoned thatcollateral estoppel did not apply because collateral estoppel did not apply because the regulations state that termination ofdeferral is deferral is“properly considered . . . on subject toa de novo “a de novobasis.”5 determination.” 8 C.F.R. § 1208.17 (d)(3).5 The BIA did not cite any authority for 8 C.F.R. § 1208.17 Deferral ofthis proposition; however, there is removal under the Conventionsimilar language in the regulation Against Torture.governing termination of CAT deferralof removal. 8 C.F.R. § 1208.17(d)(3). (d) Termination of deferral of removal.Oyeniran’s case was in a different, ****though analogous, procedural (3) The immigration judge shall conduct 4 a hearing and make a de novoposture. See supra note . determination, based on the record of ꜜ proceeding and initial application in addition to any new evidence submittedFor easy reference: by the Service or the alien, as to whether4 For simplicity, we refer jointly to a the alien is more likely than not to be“second” hearing because the evidence tortured in the country to which removalsubmitted during the 2008 proceeding has been deferred. This determination(on a motion to terminate deferral) was shall be made under the standards forincorporated into the 2009 hearing (on a eligibility set out in §1208.16(c). Themotion to remove an arriving alien and burden is on the alien to establish that itOyeniran’s second application for CAT is more likely than not that he or sheprotection). [Underline added.] would be tortured in the country to which removal has been deferred. Page 5 of 5