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Why not read some AAO non precedents

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Why not read some AAO non precedents

  1. 1. Why Not Read Some AAO Non-Precedents? By Joseph P. Whalen (April 9, 2012)AAO clarifies and reiterates a few key but crucial underlying concepts in itsvarious non-precedential decisions made upon certification of the occasional I-485adjustment of status case from various USCIS Field Offices from around thecountry. Here are but a few excerpts from said decisions. Why not check them out?This first blurb is used frequently with minor alterations. The cases cited thereinare worth reviewing. Ignore your research to your own detriment. Adjustment of status is, therefore, a matter of administrative grace, not mere statutory eligibility. Matter of Marques, 16 I. & N. Dec. 314, 315 (BIA 1977). The applicant has the burden of demonstrating that discretion should be exercised in his favor. Matter of Patel, 17 I. & N. Dec. 597, 601 (BIA 1980); see also Matter of Leung, 16 I. & N. Dec. 12 (BIA 1976), Matter of Arai,13 I. & N. Dec. 494 (BIA 1970). Where adverse factors are present, it may be necessary for the applicant to offset those factors by a showing of unusual or even outstanding equities. Matter of Arai, 13 I. & N. Dec. at 496. Favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. Id. 1These next two snippets come from the same decision. There is much more detailto be found in the full decision and is worth the effort to read and digest in itsentirety. The record provides the following facts and procedural history. The applicant filed a Form 1-589, Application for Asylum and Withholding of Deportation, on June 12, 1995. He was interviewed regarding the asylum application on June 19, 2003 and again on February 13, 2008. A Notice of Intent to Deny (NOID) the asylum application was issued to the applicant on February 27, 2008. A rebuttal to the NOID dated March 6, 2008 is also in the file. The record also includes the applicants December 27, 1999 Form 1-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (pursuant to section 203 of Public Law 105-100 (NACARA)). The applicant was again interviewed on October 6, 2008. On April 29, 2008, the applicant was notified that his NACARA application had been referred to an Immigration Judge for a decision. On June 24, 2008, the Immigration Judge terminated removal proceedings so that United States Citizenship and Immigration Services (USCIS) could consider the applicants Form 1-485 application filed for permanent resident status under section 245(i), based on an approved Form 1-130 visa petition filed by the applicants brother. On July 21, 2009, the field office director denied the Form 1-485, as a matter of discretion, after considering positive and negative factors regarding the applicants history in El Salvador and the United States. The field office director certified her decision to the AAO for review. * * * * *1 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2010/Jun292010_01A1245.pdf Page 1 of 3
  2. 2. On certification, the AAO finds that the asylum officers contemporaneous write-up of the June 19, 2003 interview reflects the most accurate finding of the Newark Asylum Office regarding the applicants credibility. The AAO finds the statement set forth in the February 27, 2008 NOID, some five years subsequent to the June 19, 2003 interview that the applicant was found credible, is a statement that should not be given great weight or deference. The AAO also finds that the applicants submission of an obviously altered identification card regarding his tenure in the Salvadoran civil patrol impugns the applicants credibility. The information in the record is insufficient to support a finding that the applicants actions in El Salvador between 1982 and 1990 involved the persecution of others; however, the applicants generally vague testimony regarding his activities with the civil patrol and the events occurring in El Salvador when he was there, the applicants willingness to include information on a Form 1-589 that was untrue in an effort to obtain asylum, and the submission of an altered document raises significant questions regarding the veracity of the applicant. In addition, the applicant indicated on the 1995 Form 1-589 that he had not previously applied for asylum; however the record reflects that the applicant filed for asylum and was placed in proceedings before an Immigration Judge in 1981. 2In addition to the immediately preceding, the applicant’s Counsel also wasted theclient’s money filing an appeal. Counsel for the applicant filed and paid a fee for a Form I-290B, Notice of Appeal or Motion. The AAO does not have appellate jurisdiction over an appeal from the denial of an application for adjustment of status under section 245 of the Immigration and Nationality Act (the Act). 8 C.F.R. § 245.2(a)(5)(ii). * * * * * ________________ 1 The field office director also certified her decision on the Form 1-485 to the AAO for review. Upon review of the issue submitted by the director on certification and counsels information improperly submitted on appeal but reviewed on certification, the AAO issued a separate decision on this same date. 3Here is yet another issue to consider which demonstrates that bad planning andpoor timing can be detrimental to eligibility to seek adjustment of status. The director denied the Form 1-485 on August 19, 2009 noting that the applicant was ineligible to adjust his status under sections 245(a), (i) or (k) of the Act. Regarding section 245(a) of the Act, the director stated that the applicant was ineligible for adjustment under this section of law because he failed to maintain a continuous lawful status from the time of his entry into the United States until he filed his application to adjust status. The director also noted that the applicant was ineligible to adjust his status under section 245(i) of the Act because he was not the beneficiary of a petition that had2 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2010/May052010_01A1245.pdf3 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2010/May052010_10A1245.pdf Page 2 of 3
  3. 3. been filed prior to April 30,2001. Regarding section 245(k) of the Act, the director stated that the applicant was out of lawful status during the following periods of time: • From October 25, 2007 until December 18, 2007; and • From June 28, 2008 until November 7, 2008. The director noted that the total number of days that the applicant was out of status amounted to 185 days, which is five days more than permitted under section 245(k) of the Act. 4This next case involves a labor certification application that was deemed notapprovable when filed per 8 CFR § 245.10(a)(3). The applicant seeks to adjust his status to that of a lawful permanent resident pursuant to section 245(i) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1255(i). The director denied the application, finding that the applicant was not eligible to adjust his status under sections 245(a), (i) or (k) of the Act, and certified his decision to the AAO for review. On notice of certification, the director informed the applicant that he had 30 days to supplement the record with any additional evidence that he wished the AAO to consider. On notice of certification, the petitioner submits additional evidence.2 * * * * * ___________ 2 The applicant is seeking to adjust his status pursuant to section 245(i) of the Act and does not dispute that he is ineligible to adjust his status pursuant to sections 245(a) or (k) of the Act. Consequently, we shall affirm but not discuss the directors findings on these two issues * * * * * The evidence submitted on certification fails to establish that the labor certification application was properly filed, meritorious in fact, and non-frivolous when it was accepted for processing on April 30, 2001. The payroll records and Form 941 indicate that House of the Future had only one employee, who was the companys owner. These documents do not demonstrate that House of the Future was, as DOL required it to establish, a bona fide business entity. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972». Accordingly, the applicant has not demonstrated his eligibility to adjust his status pursuant to section 245(i) of the Act because the labor certification application filed on his behalf by House of the Future with an April 30, 2001processing date was not approvable when filed. 5These are but a few of the items of interest to be found if you take the time to look.See these and many more Administrative Decisions posted on www.uscis.gov4 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2010/Sep072010_02A1245.pdf5 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2011/Aug222011_01A1245.pdf Page 3 of 3

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