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They have to give you a fighting chance to make your case

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They have to give you a fighting chance to make your case

  1. 1. They Have to Give You a Fighting Chance to Make Your Case By Joseph P. Whalen (July 9, 2012)Vague responses to specific questions are generally fatal to making your case. Onthe other hand, a vague response to vague questions leaves room for hope whenchallenging a specific finding-of-fact. Any denial based on a finding that a“specific fact” was not proven cannot withstand scrutiny if the inquisitor failed toask sufficiently detailed questions likely to elicit that “specific fact” in the firstplace. See Shunfu Li v. Mukasey, 529 16 F.3d 141, 147 (2d Cir. 2008) (“[A]finding of testimonial vagueness cannot, without more, support an adversecredibility determination unless government counsel or the IJ first attempts tosolicit more detail from the alien.”).Our friends at EOIR produce a newsletter styled as the “Immigration Law Advisor”here is a small excerpt from vol. 5 no. 6 (July 2011) 1, wherein the lead article is:“The Quality That Makes Something Worthy of Belief: REAL ID CredibilityStandards and 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. 3This basic concept is applicable across many contexts and may take on quitedifferent forms depending on the particular subject matter in the line of inquiry.Most judicial case law appears to come from the realm of asylum, withholding orcancelation of removal, or relief under CAT, as well as naturalization eligibility.However, administrative precedents include additional contexts wherein thisconcept is prominent. In Matter of S- and B-C-, 9 I&N Dec. 436 (A.G. 1961)2, theAttorney General tackled the concepts of “misrepresentation” and “materiality”and provided a test while setting out particular criteria.1 See: http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202011/vol5no6.pdf2 See: http://www.slideshare.net/BigJoe5/matter-of-s-and-bc-9-in-dec-436-ag-1961
  2. 2. The above 1961, Attorney-General-decided case’s three-prong holding was: (1) A misrepresentation under section 212(a) (19) of the Act is material if either: (A) the alien is excludable on the true facts, or (B) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he be excluded. (2) The same test for determining materiality is applicable to misrepresentations involving identity, which are no longer to be accorded a special status. (3) Where it is shown that the aliens misrepresentation choked off a relevant line of inquiry which might have resulted in a proper determination of excludability, the alien has the burden of establishing the true facts and bears the risk that uncertainties resulting from his own obstruction of the inquiry may be resolved against him.While the actual 1961, case related to “exclusion”, the underlying concepts had,and still have, far-reaching implications. I also find it worth noting that the conceptwas expressed twice. First as “shutting off” and then as having “choked off” a“relevant” “line of inquiry”. Now the concept is codified so as to addresssituations where a poor evidentiary showing “precludes a material line of inquiry”.Such actions cast doubts on the whole case as noted in numerous other decision.Next, is a very familiar blurb on “doubts” found in many cases across-the-board. Doubt cast on any aspect of the petitioners proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988).The full holding from Matter of Ho, 19 I&N Dec. 582 (BIA 1988), is: (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. (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. (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. (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.
  3. 3. (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. (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.This important concept has been placed within the agencies’ implementingregulations at 8 CFR § 103.2(b)(14) which states (bold emphasis added): Effect of request for decision. Where an applicant or petitioner does not submit all requested additional evidence and requests a decision based on the evidence already submitted, a decision shall be issued based on the record. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the benefit request. Failure to appear for required fingerprinting or for a required interview, or to give required testimony, shall result in the denial of the related benefit request.Recently, several months ago as of this writing, USCIS’ AAO (AdministrativeAppeals Office) released the Dismissal of an Appeal to CSC’s Denial of a Requestfor Designation as a Regional Center. That non-precedent decision is dated May 2,2011, but was not found on the USCIS website until early 2012, nearly a year afterit was decided. A major flaw in the underlying request for designation wasvagueness as well as some rather critical fundamental errors. It seems obviousto me that the applicant did not understand the issues or underlying questions askedof such applicants in order to provide satisfactory answers and sufficiently detailedinformation. I do not want to overwhelm anyone at this point. I just offer theabove as food for thought. If you don’t know what the crucial questions are youcannot answer them. That’s my two-cents, for now. Joseph P. Whalen Independent EB-5 Consultant, Advocate, Trainer & Advisor 51 Ashton Place | Buffalo, NY 14220-2107 Phone: (716) 604-4233 Fax: (716)568-8208 E-mail: joseph.whalen774@gmail.com or Silver.SurferEB5@gmail.com or twitter@JoeWhalen1 web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer A full range of Training is available across many contexts and INA benefits. DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the clients responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I generally serve Regional Center Principals and their counsel. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NAICS Code: 611430 Professional and Management Development Training

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