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Thoughts on Critical Thinking

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Thoughts on Critical Thinking: How sound is your judgement? Are you a reasonable person?

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Thoughts on Critical Thinking

  1. 1. Page 1 of 3 Thoughts on Critical Thinking By Joseph P. Whalen (Wednesday, July 13, 2016) According to the Oxford English Dictionary, as found online, “critical thinking”1 is: “The objective analysis and evaluation of an issue in order to form a judgement: professors often find it difficult to encourage critical thinking among their students.” In my view, for any legal judgment to be considered sound it must be: 1. in keeping with the spirit of the statute, 2. guided by the regulations and/or policy statements, 3. tempered with wisdom; and 4. made within the proper context. The process by which we form our judgements involves “objective analysis” and “evaluation”. Again, in my view, the process described as “critical thinking” seems to be an easy fit with the two-step analysis now used by USCIS and AAO, as adopted from the Ninth Circuit Court of Appeals decision in the case of Kazarian v. USCIS.2 While the Kazarian two-step analysis focused on the adjudication of first-preference, employment-based immigrant visa (EB-1A or E11) petitions, it spurred a re-evaluation of methodology beyond the single category at issue in that case. 1 http://www.oxforddictionaries.com/definition/english/critical-thinking 2 Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).
  2. 2. Page 2 of 3 The two-step analysis emphasized in Kazarian is actually not a new concept or approach. It is merely a reminder of the basic approach needed in most analyses. The requirement to demonstrate a minimum evidentiary showing or prima facie case, has long been recognized as a preliminary step to be taken, or an antecedent procedural question to be answered. In order to determine eligibility for anything there must first be eligibility criteria defined, somewhere, which can be demonstrated through presentation of evidence. In an ideal world, the evidence to be presented would be clearly defined and enumerated, but the realm of immigration benefits (or relief) does not exist within an ideal world. It is often complex, convoluted, subjective, or plain old “messy”. In other words, “it’s just not that simple”. Some evidence categories are fluid and dynamic, and as such, tend to grow organically, and are perhaps in a constant state of flux. The Code of Federal Regulations (C.F.R.) exists as an aid for, and guide to, the proper, lawful, and just administration of those particular laws assigned to various agencies within the executive branch. Title 8, of the C.F.R., “Aliens and Nationality” is the primary C.F.R. used by USCIS (and the rest of DHS) while “enforcing” the Immigration and Nationality Act (INA or Act) [8 U.S.C. § 1101, et seq.], related laws, and treaties. These are the “regulations” mentioned in no. 2, above.
  3. 3. Page 3 of 3 Specific evidentiary requirement can be in 8 C.F.R. for many of the various benefits provided for under the immigration and nationality laws but not every benefit has “clear cut” evidentiary requirements. Some benefits’ evidentiary requirement, as stated in the laws, are more loosely-defined than others are; as discussed above. In those cases when Congress has been ambiguous, the federal agency with administrative jurisdiction may fill in gaps and try to decipher those ambiguities then make its decision known through notice-and-comment rulemaking. To pull this rambling dissertation back on topic, the use of critical thinking helps everyone dealing with the murkier areas of ill-defined evidentiary categories. One needs to be able to objectively evaluate the worth of the evidence whether selecting it for submission or adjudicating eligibility. I believe that the soundness of any particular judgement is measured by how skillfully it was sculpted through the evaluation of the proffered evidence. Has the judgment been created such that it can be described as being: 1. in keeping with the spirit of the statute, 2. guided by the regulations and/or policy statements, 3. tempered with wisdom; and 4. made within the proper context? That’s My Two-Cents, For Now!

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