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Transformation Increment I Rule Comment 1; USCIS–2009–0022This rule is a welcome step in the progress that DHS, especially...
(a) There is no indication here that Congress sought to limit or prohibit      judicial review. P. 401 U. S. 410.      (b)...
“Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), is a decision bythe Supreme Court of the United States t...
As a specific example of a different context, INA § 341(a) states in part:      “... Upon proof to the satisfaction of the...
and must continue to be eligible through adjudication. This seems to be a codificationof a principle further expanded in M...
evidence required by applicable regulations and other USCIS instructions. Any      evidence submitted in connection with a...
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Transformation rule comment 1

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Transformation rule comment 1

  1. 1. Transformation Increment I Rule Comment 1; USCIS–2009–0022This rule is a welcome step in the progress that DHS, especially USCIS, is making toclean up long outdated and otherwise deficient regulations. Some of the reasoningand intentions expressed in the supplementary information does not seem to havemade it all the way into the actual regulations.SUPPLEMENTARY INFORMATION:III. The Changes Made by This RuleF. Revising or Reorganizing Sections or Paragraphs for Clarity and Consistency,and To Remove Duplicative InformationSpecifically on page 53770, USCIS states, in pertinent part: “Section 103.2(b)(1) is revised to update terminology and to clarify that every applicant or petitioner must remain eligible for the benefit request at the time of adjudication and that every benefit request must be submitted with all prescribed supporting documentation. USCIS longstanding policy and practice, as well as a basic tenet of administrative law, is that the decision in a particular case is based on the administrative record that exists at the time the decision is rendered. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1972). Thus, the granting of any benefit request by DHS is not based solely on what is provided at the time of the initial request and is contingent on the fact that circumstances will not change during the processing of a benefit request in such a way so as to render the applicant ineligible. This change will reduce any confusion that may exist for those who believe that eligibility is based solely on what is provided at the time of the initial request and instead will clarify that eligibility is subject to change if circumstances change while processing occurs. This clarification may be especially important in the transformed electronic environment. This revision is not a substantive change in eligibility criteria and is thus appropriate for this final rule...” [Emphasis added.]Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1972)1, held: “1. The Secretarys action is subject to judicial review pursuant to § 701 of the Administrative Procedure Act. Pp. 401 U. S. 413.1 http://supreme.justia.com/us/401/402/
  2. 2. (a) There is no indication here that Congress sought to limit or prohibit judicial review. P. 401 U. S. 410. (b) The exemption for action "committed to agency discretion" does not apply, as the Secretary does have "law to apply," rather than wide- ranging discretion. Pp. 401 U. S. 410-413.2. Although, under § 706 of the Act, de novo review is not required here, andthe Secretarys approval of the route need not meet the substantial evidence test,the reviewing court must conduct a substantial inquiry and determine whetherthe Secretary acted within the scope of his authority, whether his decision waswithin the small range of available choices, and whether he could havereasonably believed that there were no feasible alternatives. The court mustfind that the actual choice was not "arbitrary, capricious, an abuse of discretion,or otherwise not in accordance with law," and that the Secretary followed thenecessary procedural requirements. Pp. 401 U. S. 413-416.3. Formal findings by the Secretary are not required in this case. Pp. 401 U. S.417-419. (a) The relevant statutes do not require formal findings, and there is no ambiguity in the Secretarys action. P. 401 U. S. 417. (b) Although a regulation requiring formal findings was issued after the Secretary had approved the route, a remand to him is not necessary, as there is an administrative record facilitating full and prompt review of the Secretarys action. Pp. 401 U. S. 417-419.4. The case is remanded to the District Court for plenary review of theSecretarys decision. Pp. 401 U. S. 419-420. (a) The lower courts review was based on litigation affidavits, which are not the whole record, and are an inadequate basis for review. P. 401 U. S. 419. (b) In view of the lack of formal findings, the court may require the administrative officials who participated in the decision to give testimony explaining their action or require the Secretary to make formal findings. P. 401 U. S. 420.432 F.2d 1307, reversed and remanded.”
  3. 3. “Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), is a decision bythe Supreme Court of the United States that established the basic legal framework forjudicial review of the actions of administrative agencies. It also stands as a notableexample of the power of litigation by grassroots citizen movements to blockgovernment action.”2Prior to this change, 8 CFR § 103.2 read:(b) Evidence and processing —(1) Demonstrating eligibility at time of filing. Anapplicant or petitioner must establish that he or she is eligible for the requested benefitat the time of filing the application or petition. All required application or petitionforms must be properly completed and filed with any initial evidence required byapplicable regulations and/or the forms instructions. Any evidence submitted inconnection with the application or petition is incorporated into and considered part ofthe relating application or petition.The prior version had something in it that just did not sound right. It ishighlighted below.(b) Evidence and processing —(1) Demonstrating eligibility at time of filing. Anapplicant or petitioner must establish that he or she is eligible for the requested benefitat the time of filing the application or petition. All required application or petitionforms must be properly completed and filed with any initial evidence required byapplicable regulations and/or the forms instructions. Any evidence submitted inconnection with the application or petition is incorporated into and considered part ofthe relating application or petition.eligibility at time of filing This was a codification of the principle espoused in Matterof Katigbak, I&N Dec. 45, 49 (Regl. Commr. 1971) and carried over into otherinapplicable contexts in other Precedent Decisions. It is perfectly correct andappropriate within the right context but not in absolutely every adjudicative contextfound within the provisions of the INA. The “time of adjudication” or “time ofmaking the full required evidentiary showing” or in other words, “upon proof to thesatisfaction of the deciding official” are viable alternate contexts.2 http://en.wikipedia.org/wiki/Citizens_to_Preserve_Overton_Park_v._Volpe
  4. 4. As a specific example of a different context, INA § 341(a) states in part: “... Upon proof to the satisfaction of the Attorney General that the applicant is a citizen, and that the applicants alleged citizenship was derived as claimed, or acquired, as the case may be, and upon taking and subscribing before a member of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, such individual shall be furnished by the Attorney General with a certificate of citizenship, but only if such individual is at the time within the United States.” [The Attorney General has been replaced by the Secretary of Homeland Security and this adjudication has been delegated to USCIS.]The condition precedent under the above INA provision is a satisfactory evidentiaryshowing, i.e., upon proof to the satisfaction of.As of this change, published August 29, 2011, 8 CFR § 103.2 now reads:“(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitionermust establish that he or she is eligible for the requested benefit at the time of filingthe benefit request and must continue to be eligible through adjudication. Each benefitrequest must be properly completed and filed with all initial evidence required byapplicable regulations and other USCIS instructions. Any evidence submitted inconnection with a benefit request is incorporated into and considered part of therequest.”To me, something is still not quite right.(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitionermust establish that he or she is eligible for the requested benefit at the time of filingthe benefit request and must continue to be eligible through adjudication. Eachbenefit request must be properly completed and filed with all initial evidence requiredby applicable regulations and other USCIS instructions. Any evidence submitted inconnection with a benefit request is incorporated into and considered part of therequest.eligible for the requested benefit at the time of filing The same overstated requirementis still there. It needs additional qualification and softening in order to conform to thecase cited in the supplementary information published with the regulatory change.
  5. 5. and must continue to be eligible through adjudication. This seems to be a codificationof a principle further expanded in Matter of Izummi, 22 I&N Dec. 169 (BIA 19983)which held, in pertinent part: (3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.The new regulatory language could be misconstrued as stated because it does not fullyconform to sentiments expressed in the statement in the supplementary information,specifically: “the granting of any benefit request by DHS is not based solely on what is provided at the time of the initial request and is contingent on the fact that circumstances will not change during the processing of a benefit request in such a way so as to render the applicant ineligible.” ***** “This change will reduce any confusion that may exist for those who believe that eligibility is based solely on what is provided at the time of the initial request and instead will clarify that eligibility is subject to change if circumstances change while processing occurs.”The concept expressed in the supplementary information that “the decision in aparticular case is based on the administrative record that exists at the time thedecision is rendered” finds further support in Matter of Pazandeh, 19 I&N Dec. 884(BIA 1989). Pazandeh involved a spousal visa petition that seemed to be subject to apresumption that would have to be overcome. However, the need to overcome it“lapsed with the passage of time” and became irrelevant to the case at the time ofadjudication. The BIA found at the time of its decision that the point at issue was thenmoot and did not determine if that earlier presumption had been overcome becausethere was no longer a need to decide that question. The new regulation is lacking.Possibilities to consider: (b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is [or was legally] eligible [to file] for the requested benefit at the time of filing the benefit request and must [not lose eligibility] continue to be eligible through [by the time of final] adjudication. Each benefit request must be properly completed and filed with all initial3 http://www.justice.gov/eoir/vll/intdec/vol22/3360.pdf
  6. 6. evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request. -OR- (b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must [ultimately] establish that he or she is [or was] eligible for the requested benefit [both,] at the time of filing the benefit request and must continue to be eligible through [at the time of final] adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.Thank you for the opportunity to expression this opinion and concern.Joseph P. WhalenAugust 29, 2011

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