Threshold Issues and Progressive Case Development By Joseph P. WhalenMuch has been discussed lately about the two-part analysis based on the NinthCircuit’s decision in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). However,it is really not something new and in that grand scheme of things, everyadjudication is a multi-step process of one sort or another and the number of“parts” or steps is variable. Certain steps might not even be recognized as separate“steps”. Ultimately, all parties are trying to get the “correct conclusion” in theinquisitorial adjudication for benefits (or relief) under whatever applicable INAprovision any “request” (a petition or application, appeal or motion) is filed. Somecases entail very short and straightforward processes. For instance, workauthorization under category (c)(9) is available for a pending adjustment applicant.The key question is whether an I-485 remains pending. It is a simple yes or no inthe vast majority of I-765 adjudications for an EAD (employment authorizationdocument). However, for the (c)(8) EAD, the asylum-seeker must have a “case”pending and the required minimum 150 days must have elapsed “on the asylumclock”. A pending asylum case may take highly different forms and still beconsidered “pending” for EAD purposes and that does not even touch on“derivatives” which could include a determination based on a determination underthe CSPA (child status protection act). So even for seemingly similar “interimbenefits”, the threshold issues can be quite variable.In order to file an I-485, there must be a valid basis (approved petition or otherbasis) and it must be “accepted for filing”. There are minor proceduralconsiderations such as is it signed and accompanied by the correct fee or feewaiver request? Is the visa available? Is the priority date current? Thoseconsiderations must come even before any substantive adjudication issues may bereached.Beyond the mere initial threshold, there is usually some additional considerationand possibly many considerations before reaching an answer based on the merits.There may be several avenues of inquiry to embark upon individually and taken asfar as possible and then there may be a further need to try another path when aroadblock is reached. This is most easily illustrated in considering “citizenshipclaims”. For a person born abroad, I start off asking if either parent was a USCwhen the child was born. If yes, which one? If no, did either or both naturalizebefore the child reached the applicable cut-off age? Then I want to know if theparents were married at the time of the child’s birth and if not did they marry
afterwards and if so, how old was the child? Were they ever divorced? When? Wasa parent widowed? And the list of questions goes on and on and in variouspermutations depending on how the case progresses based on the answers to theprevious question. All of those questions are of course based on the law applicableto the individual case which itself may require some further investigation becausethose laws have changed many times over the years. Even for citizenship claimcases being presented in 2012, it may be necessary to examine various laws datingback into the 1800s. It may be necessary to examine a claim to citizenship traced ina family tree by reaching back to various statehood or territorial “collectivenaturalizations 1”. It may be required that one trace current provisions backward forpredecessor provisions and technical amendments, or precedents. It is enough tomake you tired just thinking about it. This brief note barely touches the surfacebut if it gets even one person thinking about it, I am glad. That’s my two-cents, fornow.1 Think of Guam, Puerto Rico, the U.S. Virgin Islands, Alaska, Hawaii, CNMI etc..., and those that have come andgone—Panama, Philippines.