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The Good, The Bad, in short: The Reality of Matter of Chawathe.                                By Joseph P. Whalen (non-at...
The third and fourth prongs of the holding lay out the basic evidence standard for mostimmigration proceedings, applicatio...
For easy reference:Matter of CHAWATHE, 25 I&N Dec. 369 (AAO 2010)(1) For purposes of establishing the requisite continuous...
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Reality of Matter of Chawathe

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Reality of Matter of Chawathe

  1. 1. The Good, The Bad, in short: The Reality of Matter of Chawathe. By Joseph P. Whalen (non-attorney) 2/12/2011In general, I like this Precedent Decision. The first and second prongs of the holding specificallyaddress the case of the instant N-470, Application to Preserve Residence for NaturalizationPurposes. It clearly defines who qualifies as an “American firm or corporation” and who doesnot for purposes of INA 316(b) benefits. Other non-precedent decisions address other specificsituations and N-470 eligibility requirements, for example: “The AAO notes that the statutory language contained in section 316(b) of the Act does not require a person to establish that he or she became a United States lawful permanent resident subsequent to the commencement of employment with an American firm or corporation. Rather, the statutory language specifying that an alien may not be employed by an organization prior to lawful admission for permanent residence refers only to section 316(b) provisions pertaining to employment by public international organizations. Furthermore, the Immigration and Naturalization Service (INS), now U.S. Citizenship and Immigration Services (USCIS), interpreted § 316(b) of the Act to require that an alien who began employment with a United States company prior to becoming a lawful permanent resident need only establish that he or she was physically present and residing in the United States after being lawfully admitted for permanent residence for at least one year prior to his employment abroad. Matter of Warrach, 17 I&N Dec. 285, 286 (Reg. Comm. 1979).”1 From: Jul302009_01E1316.pdfIn another N-470 non-precedent decision, the demise of the “Fleuti doctrine”, which isapplicable to similar statutory sections such as INA 309 (c), is clearly discussed: “Both the director and counsel erred by applying the so-called "Fleuti doctrine" to evaluate whether the applicants departures were interruptive of his physical presence in the United States. As noted above, the field office director and counsel relied on a 1963 Supreme Court decision, Rosenberg v. Fleuti, 374 U.S. at 449, in addressing whether the applicants numerous trips abroad were "meaningfully interruptive" or "significant." The AAO notes that the Fleuti decision, and the doctrine of "brief, casual, and innocent" departures, was nullified by the enactment of section 301(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 ("IIRIRA"). The Fleuti doctrine, with its origins in the no longer existent statutory definition of "entry," did not survive as a judicial doctrine beyond the enactment of IIRIRA. Matter of Collado, 21 I&N Dec. 106 1, 1065 (BIA 1998). Accordingly, the director erred when he weighed whether the applicants absences were meaningful and significant.”2 From: Feb022009_01E1316.pdf1 http://www.uscis.gov/err/E1%20-%20Application%20to%20Preserve%20Residence%20for%20Naturalization/Decisions_Issued_in_2009/Jul302009_01E1316.pdf2 http://www.uscis.gov/err/E1%20-%20Application%20to%20Preserve%20Residence%20for%20Naturalization/Decisions_Issued_in_2009/Feb022009_01E1316.pdf 1
  2. 2. The third and fourth prongs of the holding lay out the basic evidence standard for mostimmigration proceedings, applications, and petitions, in order to bestow a benefit, includingclassification, UNLESS, a different standard of proof is dictated. In cases that do not specifysome other standard of evidence, the “preponderance of evidence” standard is to be applied.Preponderance is the same as “more likely than not”, “probably true” or; more than 50% true,probable, or likely. In other words, it has to pass the “sniff test”: “does it stink like a big pile ofcrap?”Last, but not least, the fifth prong of the holding in Matter of Chawathe, 25 I&N Dec. 369 (AAO2010) has likely been taken as an endorsement of the “Culture of NO!” by the overlyenforcement-minded leftover examiners and adjudicators from Legacy INS.The fifth prong specifically says: “If the director can articulate a material doubt, it isappropriate for the director to either request additional evidence or, if that doubt leads thedirector to believe that the claim is probably not true, deny the application or petition.” Whatdoes the USCIS Officer actually see? I believe that some only see those seven words that I haveunderlined.The more recent USCIS Immigration Service Officers (ISO’s) and the tail-end of INS, and thevery beginning of USCIS, Adjudications Officers and Immigration Information Officers (IIO’s)may have been exposed to that “Culture of NO!” to a far less degree but are not immune to it.The “old guard” of Legacy INS would likely see it as a challenge. They would “pick up thegauntlet” and “charge into battle”! Unfortunately, for them, that is not their job.We can all agree that the primary function of USCIS is to evaluate eligibility for benefitsavailable under the INA and either grant or deny that benefit. While it is plainly understood thatno benefit may be granted to an applicant or petitioner to which he or she is not legally entitled,it should also be understood that it is not the function of USCIS to do everything in its power todeny any benefits unjustly. Unfortunately, the "Culture of NO!" is alive and well at USCIS,especially at the Service Centers. Let’s hope it is on its deathbed.I ask for ILW.com readers to submit examples documenting the quality of Decisions that theyare encountering under the continued “Culture of NO!” Let us not forget that although thisdecision became an official I&N Precedent Decision on October 20, 2010, it began as Matter ofChawathe, (A74 254 994, AAO Adopted Decision, January 11, 2006). This issue was broughtup and given lip service…I mean…addressed…at the October 28, 2008, USCIS-AILA LiaisonCommittee. How has that worked out for you? Please share your experiences. 2
  3. 3. For easy reference:Matter of CHAWATHE, 25 I&N Dec. 369 (AAO 2010)(1) For purposes of establishing the requisite continuous residence in naturalization proceedingspursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b) (2006), apublicly held corporation may be deemed an “American firm or corporation” if the applicantestablishes that the corporation is both incorporated in the United States and trades its stockexclusively on U.S. stock exchange markets.(2) When an applicant’s employer is a publicly held corporation that is incorporated in theUnited States and trades its stock exclusively on U.S. stock markets, the applicant need notdemonstrate the nationality of the corporation by establishing the nationality of those personswho own more than 51% of the stock of that firm. Matter of Warrach, 17 I&N Dec. 285, 286-87(Reg. Comm’r 1979), clarified.(3) In most administrative immigration proceedings, the applicant must prove by apreponderance of evidence that he or she is eligible for the benefit sought.3(4) Even if the director has some doubt as to the truth, if the petitioner submits relevant,probative, and credible evidence that leads the director to believe that the claim is “more likelythan not” or “probably” true, the applicant has satisfied the standard of proof. Matter of E-M-, 20I&N Dec. 77, 79-80 (Comm’r 1989), followed.(5) If the director can articulate a material doubt, it is appropriate for the director to eitherrequest additional evidence or, if that doubt leads the director to believe that the claim isprobably not true, deny the application or petition.3 Although not footnoted in the Precedent Decision, for the source of that see U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “morelikely than not” as a greater than 50 percent probability of something occurring). 3

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