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What else did the cited decisions say & do they still apply?

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What else did the cited decisions say & do they still apply?

  1. 1. What Else Did The Cited Decisions Say & Do They Still Apply? By Joseph P. Whalen (January 30, 2012)Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988) held: (1) A petitioner must be afforded a reasonable opportunity to rebut the derogatory evidence cited in a notice of intention to deny his visa petition and to present evidence in his behalf before the district directors decision is rendered. (2) Reasonable and timely requests for an extension of time to submit a rebuttal to the notice of intention to deny a visa petition should be dealt with by the district director in a reasonable and fair manner, particularly when a petition has been pending for a prolonged period or where the notice of intention to deny contains extensive investigative findings or factual allegations. (3) To be considered "reasonable," a request for an extension of time to submit a rebuttal must state with specificity the reasons for the request and be limited to a finite period, and it must not be for the purpose of obtaining documents which should have initially been submitted with the petition by regulation. (4) Where a petitioner fails to timely and substantively respond to the notice of intention to deny or to make a reasonable request for an extension, the Board of Immigration Appeals will not consider any evidence first proffered on appeal as its review is limited to the record of proceeding before the district director; for further consideration, a new visa petition must be filed.Given that the cited Precedent Decision pertains to specific issues that were onceupon a time left to the discretion of the INS officer but were subsequently codifiedin 8 CFR § 103.2 with firm time limits, the holding lost usefulness for many years.The most recent regulatory changes at the end of 2011, almost tried to loosen thosefirm time limits but not quite. The regulatory action followed on the heels of earlieralterations through Policy Memoranda and AFM updates. While the olderregulations always afforded a standard set amount of time to respond to an RFE orNOID, the altered regulations now indicate them as maximums.8 CFR § 103.2 Submission and adjudication of benefit requests. ***** (b) Evidence and processing. ...... ***** (8) Request for Evidence; Notice of Intent to Deny-- ..... ***** (iv) Process. A request for evidence or notice of intent to deny will be communicated by regular or electronic mail and will specify the type of Page 1 of 5
  2. 2. evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted. [Emphases added.]Many of those same issues discussed in the older decisions cited herein arecurrently in a state of flux. USCIS is seriously reviewing a variety of processes andprocedures. The two most prominent among them and that are most familiar to thiswriter are the EB-5 Immigrant Investor Program and the the promised AAOReforms. The AAO Reforms which according to the recently posted Agenda1 isdue out as a Notice of Proposed Rulemaking (NPRM) in March 2012. While avariety of substantive issues are under review, I imagine that the AAO Rule willtouch upon a great many of them, so I won’t single all of them out. That said, issuerelating to N-600s, N-565s, N-400s, as well as National Interest Waivers (NIWs)and the proper application of the Kazarian Analysis may likely be included oraddressed alongside the AAO Reform Rulemaking process. I look forward to it.As for the relevance of Obaigbena, the one constant has been the utility of footnotenumber two (2). That footnote, however was merely a cross-reference to an earlierdecision. FN 2 We note statements or assertions by counsel are not evidence. Matter of Ramirez- Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).That footnote pertained to prong number four (4) of the cited decision: (4) Counsel’s comments in support of a motion to suppress are not evidence.The BIA expounded in substantial detail upon this point and that is where theuseful quotes and characterizations emanate from. The following excerpt is just asample from the BIA’s earlier discussion. “The respondents motion to suppress the evidence offered by the Service was insufficient and properly denied. There is no evidence that the prior statements of Mario1 See: http://www.regulations.gov/#!documentDetail;D=DHS-2012-0005-0001 andhttp://www.regulations.gov/#!documentDetail;D=DHS-2012-0005-0002 andhttp://www.regulations.gov/#!documentDetail;D=DHS-2011-0015-0066 for Agenda & Plans. Page 2 of 5
  3. 3. Ramirez-Sanchez were made involuntarily. The respondents offer of proof in support of his motion is a mixed legal and factual declaration by counsel, not based on counsels personal knowledge and never corroborated personally by the respondent. The respondent stood mute at the hearing, refusing to testify on the issue of deportability on the ground that his answers might incriminate him. In a brief to the immigration judge, his counsel argued that if the respondent were allowed to testify without his testimony being considered against him, the respondent would testify that at the times the statements in question were taken, he was detained in the custody of Service agents, he was nervous and fearful, and that the agents misrepresented if not suppressed his rights to counsel and to a hearing. Counsels arguments are not evidence and even if they were, they would not constitute a prima facie showing that the statements were involuntarily given. The statement lacks factual details from which we could conclude that there may have been coercion or duress. There is no allegation of physical abuse, hours of interrogation, denial of food or drink, threats or promises, or interference with any attempt by the respondent to exercise his rights. Compare Matter of Garcia, supra.” At pp. 505-506Matter of Garcia, 17 IN Dec. 319 (BIA 1980) held: (1) Respondent who testified that he made admission of alienage only after being led to believe by Service officers that his deportation was inevitable, that he had no rights whatsoever, that he could not communicate with his counsel, and that he could be detained without explanation of why he was in custody, came forward with a prima facie showing that this admissions were involuntarily given. (2) Where Service presents no contrary evidence after a respondent makes a prima facie showing that his admissions were involuntarily made and where only those admissions support finding of deportability, the proceedings will be terminated.Although there appear to be typos in the dates in that old decision, IF I amguessing correctly on which ones to believe, the respondent was in front of anImmigration Judge in less than one month from being picked up while working ona farm in California. The arrest was on August 17th and the IJ’s order was issued onSeptember 14th. It is also quite a telling historical note that this case include anold Form I-274 entitled: "Request for Return to Mexico".While that form no longer exists, it can still come to light in more recent caseswhen found inside an A-file such as in the following case. Page 3 of 5
  4. 4. Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005)2 noted the following bitof background on that old form and the current significance of its presence or itsabsence from the record of proceeding. “In 1990, the U.S. Border Patrol had the authority to grant voluntary departure to an alien “[w]ho is a native of a foreign contiguous territory” such as Mexico. See 8 C.F.R. § 242.5 (1990). Voluntary departures, which are formal and legally binding grants, were commonly documented in an aliens file, see Deportation Officers Handbook, Immigration and Naturalization Service (Handbook), Ch. 1, ¶ 1-4 (1986), even though extensive docket control was not necessary for cases involving immediate departure. Id. at ¶ 1-2 (noting that I-274/274A and “satisfactory departure” cases do not require docket control). The Handbook stated: When an alien has been granted voluntary departure and removed at Government expense, care should be taken to leave written evidence in the aliens file indicating the date of removal and the cost of the removal. Form I-274/274A has a portion devoted to this at the bottom of the form. Cases, other than I- 274/274A cases, should have a memo to the file indicating the above information. Id. at ¶ 1-4.5 If no government expense was involved, however, a “satisfactory departure” was often just “noted on the reverse of the aliens Form I-94” and not otherwise recorded. See Detention and Deportation Officers Field Manual, Department of Homeland Security, Ch. 11.8 (2002) (noting that the practice was common prior to 1997).Footnote From Original: FN5 Notably, the current versions of these documents make the requirements of documentation and communication more clear, noting the need to establish that the alien "was fully aware of the terms and conditions attached to the grant." Detention and Deportation Officers Field Manual Ch. 11.8 (2002) (Field Manual). The Department of Homeland Security regulation states that "[e]very decision regarding voluntary departure shall be communicated in writing on Form I-210, Notice of Action — Voluntary Departure. Voluntary departure may not be granted unless the alien requests such voluntary departure and agrees to its terms and conditions." 8 C.F.R. § 240.25 (2004). In addition, the Field Manual clarifies that: [i]t is most important that arresting officers understand and communicate to aliens being granted voluntary departure that failure to depart under the terms given will not only result in the alien being placed in removal proceedings, but will also preclude him or her from receiving any grant of voluntary departure for a period of 10 years, ....2 http://openjurist.org/395/f3d/903/reyes-vasquez-v-ashcroft Page 4 of 5
  5. 5. It is essential that no voluntary departure period be granted without issuance of Form I-210 (Rev 4/1/97) and that the affected alien be made aware of and agree to the terms of such a grant.Field Manual Ch. 11.8 (emphasis in original). Page 5 of 5

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