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< Back to current issue of Immigration Daily

Has the Well Run Dry? 2011 Seemed Like a Knowledge and Guidance Vacuum So Far With Minimal Postings to USCIS' Administrative Decisions on www.uscis.gov BUT Change is in the Air in Other Matters at USCIS

by Joseph Whalen

I. Only TWO Administrative Decisions by AAO Posted In 2011

A. An EB-5 Decision</p>

August has just come to a close as this is written and to date only two AAO non-precedent Decisions have been posted thus far in 2011. An I-829 request by an entrepreneur to lift conditions from status denied and affirmed on certification dated April 14, 2011, is the most recent administrative decision that has been posted to the USCIS website, specifically found at: Apr142011_01B7203.pdf. It is a lengthy decision, weighing in at 20 pages, but the last page is only half filled and the first is only a cover sheet, so it nets 18 pages. It is well worth reading and provides some very good information and a plethora of case citations. In addition, it clarifies current interpretations on some key EB-5 Regional Center Investor issues.

Poor execution of a plan is not going to result in removal of conditions especially when you hire an almost all "unauthorized alien" workforce. While CSC cannot go behind an approved job multiplier without identifying and finding any impermissible material change or evidence of misrepresentation or concealment at an earlier stage, you simply cannot apply a job multiplier to illegal alien workers to arrive at "indirect job" totals!

Lastly, AAO will make findings of material misrepresentation that will follow you into future proceedings. Some misrepresentations can eventually be overcome by a waiver but we all know how that any waiver can be very difficult to get. Also, let's face it, if these folks had another route to an immigrant visa, they probably would have taken it in the first place. Consequently, an I-601 waiver is highly unlikely to come into play for most of these folks any time soon, if ever.

B. An Orphan Petition Decision

The only other decision posted in 2011, is a non-Hague Orphan Petition denial (I-600 filed concurrently with an I-600A) found at: Jan032011_01F1101.pdf This one is shorter but still quite well written and informative. The 9 pages, minus the coversheet and blank space, still weighs in at 7 2/3 pages, but it cites a large chunk of the law so the actual discussion only nets about 4 pages. Those few pages pack a heck of a punch.

This case is representative of a large proportion of phony-baloney family and/or friend "adoptions". The child did not qualify as an orphan. The birthfather was a "professional" who was remarried, so even though the birthmother was deceased, the child also had a stepmother, i.e., no sole or surviving parent incapable of providing care. There was no evidence as to Pakistan's standard of living or the father's lack of ability to provide support up to those standards, indeed, the father is loosely described employed as a "professional". Additionally, the child was placed with the paternal grandfather (and who knows what other family member are in the picture).

There was no legal adoption available in Pakistan. However, even the lesser but legally available and acceptable "guardianship" under Pakistani law was not effectuated. Such a "guardianship" might result in an IR-4 (orphan to be adopted) visa in some cases. There is more to the discussion but I will leave that to those who are interested to follow the link. In short, "orphans" are strangers from an orphanage and not already known to the petitioner and most certainly not a relative.

II. The Well Has Not Actually Run Dry at AAO

Another USCIS form I am quite interested in is the N-600, but there has been nothing new posted for a solid year (August 2010) and counting. I know that cases have, in fact, moved forward and found a reference to at least one N-600 case allegedly decided by AAO in 2011. In particular, Delice v. Holder et. al., Case 2:11-cv-04258-CMR, was filed in the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia) on 06/30/2011. Among the case information available in PACER, reference is made to an AAO Dismissal supposedly dated May 25, 2011. It is mentioned in the Complaint as exhibit "U". However in the list of exhibits and the labeled document, "U" is actually a Passport Application. On the off chance that it was a typo in the date, which seemed to be a strong possibility based on the other typos (or gross incompetence in repeatedly citing the wrong statute involved as 28 USC rather than 8 USC and no, it was supposed to be a reference to the INA and not to the Declaratory Judgments Act which is also involved), I looked for an N-600 Decision for May 25, 2010. The only possibility found was a case that had been rejected as having been filed by someone other than an affected party without a G-28 who could not submit one when it was requested.

From what I could figure out from the sloppy filing in PA, it is likely to be dismissed for lack of jurisdiction and/or as prematurely filed. Apparently, the issue came up in Removal Proceedings. The removal proceedings could have been temporarily administratively closed or terminated (without prejudice) but I think that the District Court would still be without jurisdiction at this time unless it was transferred from the 3rd Circuit Court of Appeals. The available information was somewhat muddled on this point. This same jurisdictional issue has come up before. See Rios Valenzuela v. Department Of Homeland Security, 506 F.d 393, 399 (5th Cir., 2007), in which the 5th Circuit upheld the District Court's Dismissal for lack of jurisdiction.

III. Other Actions Have Continued

A. Broad Changes

On Monday August 29, 2011, DHS published a USCIS Final Rule, with request for comments: "Immigration Benefits Business Transformation, Increment I" [1] at 76 FR 53764 and continues on for 43 pages. I certainly have not digested the rule 100% yet but am glad to see movement by USCIS. It is clear to me that broad changes are underway and I suspect that these broader changes have some influence on the lack of non-precedent AAO Decision postings. Also, AAO is supposedly working on a regulation regarding its own procedural reform efforts. One last item of note is the Special Immigrant Juvenile Petition Proposed Rule of Tuesday September 6, 2011, at 76 FR 54978 and goes on for 9 pages. Amazingly there is absolutely no reference to the Settlement Agreement in Perez-Olano, et al. v. Holder, et al., Case No. CV 05-3604, in U.S. District Court for the Central District of California. USCIS did previously address is responsibilities regarding Motions and did change the I-290B Instruction to include this settlement as an option.

B. Some Changed Naturalization-Related Provisions

As for regulatory changes in the Transformation Rule, some of my favorite pet peeves have been addressed. Numerous Title III benefit forms addressed in separate "information collection requests" (ICRs) in addition to their associated implementing regulations have been updated. A variety of old obsolete regulations have been dumped. You will no longer be able to file a Petition for an Amended Certificate based on 8 CFR 334.16(b). Will something eventually replace it? The newly proposed N-336 form instructions state that the hearing will be scheduled within 120 days as opposed to the 180 days as stated in the regulations. Perhaps that timeframe in 8 CFR 336.2(b) might change soon? It hasn't yet. However, the mere addition of some basic processing information is itself a major improvement.

C. Citizenship Claims

Regarding the N-600, please have a look at the proposed new version of 8 CFR 341.5. I still think something is missing. I feel that all N-600s need a decision on the merits as intended by Congress as recognized at least by the 7th Circuit in the case excerpted below. The clunky older version of the regulation at 341.6 provided: "...A decision shall be issued with notification of appeal rights in all Certificate of Citizenship cases, including any case denied due to the applicant's failure to prosecute the application." The proposed version at 341.5(d) states: "If USCIS denies the application, the applicant will be furnished the reasons for denial and advised of the right to appeal in accordance with 8 CFR 103.3." What I don't like about that is that it does not differentiate a denial for "failure to prosecute" or rule out a Denial Due to Abandonment instead it simply says to furnish the reasons for denial and advise of right to appeal. 8 CFR 103.3(a) references denials under 103.2 and 103.2(b)(13) includes denials due abandonment and (b)(15) divests such a denial of appeal rights. That leaves the door open for an undertrained adjudicator to issue an abandonment denial and advise of the associated Motion to Reopen specifically geared to such a denial on a form M-188 enumerating the limited avenues available under 8 CFR 103.5(a)(2). That would be a trivialization of the right to claim one's United States Citizenship. If this is not corrected it could could lead to erroneous "rejections" on nonsensical trivial procedural grounds. Oh, but wait! Both of those scenarios have already happened. These regulatory changes do not go far enough to prevent a recurrence of those dreadful mistakes.

8 CFR 103.5(a)(2) addresses motion requirements and includes motions in response to a denial due to abandonment. In addition, as we all should be aware by now, there are further rights to pursue a citizenship claim after the dismissal by AAO via INA 360(a) [8 USC 1503(a)] and the Declaratory Judgments Act in a U.S. District Court. Alternatively, when one is asserting a citizenship claim in Removal Proceedings they will have an avenue to pursue that claim in a Circuit Court of Appeals via INA 242(b)(5) [8 USC 1252(b)(5)].

Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010)[2] provides:

"There certainly is nothing in the language of the statute or in the legislative history of [8 USC] 1503(a) that would justify the conclusion that Congress meant to leave an individual, with more than a colorable claim of nationality, in legal limbo--able to remain in this Country, but without any means of establishing her nationality. Congress's solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congress's concern that individuals be able to settle, definitively, the issue of citizenship. Indeed, it would be disrespectful to impute to Congress a desire to leave someone in Ms. Ortega's situation permanently out in the cold." [Emphases added.]
*****

"The citizenship claim that Ms. Ortega pursued in her original application for a certificate of citizenship arose as a result of or in connection with her removal proceedings. ? Thus, ?1503(a)(1) prevents her from challenging the administrative denial of that application by way of a declaratory judgment action. ? Instead, Ms. Ortega was required to re-file her application as a motion to reopen or a motion to reconsider;?2 ?this action, in essence, would have separated her administrative action from her prior removal proceedings and eliminated the jurisdictional bar to any court action created by way of ?1503(a)(1).

On further review of Ms. Ortega's administrative file, however, we have ascertained that Ms. Ortega in fact has accomplished this necessary step. ? As we have discussed in some detail, 8 C.F.R. ?341.6 requires that any subsequent application for citizenship be filed as a motion to reconsider or to reopen. ? In this case, Ms. Ortega did file a motion to reconsider or to reopen after the AAO denied her appeal and after her removal proceedings had been terminated. ? Indeed, her motion for reopening or reconsideration explicitly alerted the AAO to the fact that removal proceedings had been terminated in her favor. ? The filing of this motion, by the Government's concession and consistent with the Fifth Circuit's decision in Rios-Valenzuela, removed the "albatross" of the prior removal proceedings from Ms. Ortega's neck and took her outside of the exception set forth in ?1503(a)(1).

Because Ms. Ortega's motion to reopen or reconsider is, by the Government's own regulation, the correct substitute for a second application for a certificate of citizenship, Ms. Ortega's motion satisfied the Government's requirement that she reinstitute an administrative action after the termination of removal proceedings. ? Having done so, and having been denied administrative relief, there is no longer a jurisdictional impediment to her instituting a declaratory judgment action under ?1503(a) because the action that she is challenging is not tainted by its connection to removal proceedings.

Conclusion

For the foregoing reasons, the judgment of the district court dismissing Ms. Ortega's complaint for lack of subject matter jurisdiction is reversed, and the case is remanded for further proceedings.

Reversed and Remanded

FOOTNOTES

1. Given this authority, the AAO's determination that Ms. Ortega's motion is "at best" a motion to reconsider is problematic. ? R.14, Ex. C at 2. According to the Government's own submission, whether an individual is in removal proceedings at the time she files a N-600 application is a jurisdictional fact for purposes of 8 U.S.C. ?1503, that is, the termination of proceedings is a fact bearing on the applicant's eligibility for ultimate relief in the district court. ? It follows, therefore, that the applicant's effort to bring this fact to the agency's attention should be characterized as a motion to reopen-the mechanism by which an individual brings new facts before the agency-as opposed to a motion to reconsider, which is focused on errors of law.

2. See 8 C.F.R. ?341.6 ("After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5.")." [Emphasis added.]

It must be remembered that a true "Denial Due to Abandonment" has NO APPEAL RIGHTS but ALL Certificate of Citizenship cases should have appeal rights so abandonment denials should NEVER be issued. The regulations that existed prior to those in the newly announced Final Rule were promulgated via 50 FR 39649 on Sept. 30, 1985, which included the following:

"SUMMARY: The final rule clarifies and affirms the requirement that a decision be issued and the applicant be notified in all cases involving an application for a Certificate of Citizenship, and specifically includes cases which are closed administratively. Additionally, minor technical amendments, including removing sexist language, are made.

EFFECTIVE DATE: September 30, 1985.

*****

SUPPLEMENTARY INFORMATION: Presently, 8 CFR 341.6 does not address cases which are closed administratively. Therefore, in order to ensure that a decision is issued in all cases, including those which are closed administratively, the regulation is being revised . ..."

D. Broadly and Generally Applicable Eligibility Considerations

1.) Specifically 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.]

2.) The prior version had something in it that just did not sound right. It is highlighted below.

(b) Evidence and processing -(1) Demonstrating eligibility at time of filing. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the form's instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition.

3.) eligibility at time of filing This was a codification of the principle espoused in Matter of Katigbak, I&N Dec. 45, 49 (Regl. Commr. 1971) and carried over into other inapplicable contexts in other Precedent Decisions. It is perfectly correct and appropriate within the right context but not in absolutely every adjudicative context found within the provisions of the INA. The "time of adjudication" or "time of making the full required evidentiary showing" or in other words, "upon proof to the satisfaction of the deciding official" whether for the initial decision or, on motion or, upon appellate review; are all viable alternate contexts in which to determine and decide eligibility based on the statutory requirements involved.

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 applicant's 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 evidentiary showing, i.e., upon proof to the satisfaction of. Any attempt to bar the pursuit on a rightful claim through the improper and nonsensical application of an inapplicable regulatory scheme will not stand up to judicial review as evidenced by the finding in Ortega, supra.

5.) Per the proposed change, published Aug. 29, 2011, 8 CFR 103.2 now reads:

"(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through 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."

6.) To me, something is still not quite right with 8 CFR 103.2.

eligible for the requested benefit at the time of filing The same overstated requirement is still there. It needs additional qualification and softening in order to conform to the case cited in the supplementary information published with the regulatory change. The change is not effective yet and could and use further adjustment after further consideration.

and must continue to be eligible through adjudication. This seems to be at least a partial back-handed codification of a principle further expanded in Matter of Izummi, 22 I&N Dec. 169 (BIA 1998 [3]) 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 fully conform to sentiments expressed in the statements 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 a particular case is based on the administrative record that exists at the time the decision 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 a presumption 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 of adjudication. The BIA found at the time of its decision that the point at issue was then moot and did not determine if that earlier presumption had been overcome because there was no longer a need to decide that question. An alternate possibility became an affirmative avenue then available and trumped the presumption. The new regulation is lacking as it does not fully embrace this concept. The AAO should follow the same reasoning expressed by, and the course of action taken by, the BIA in that case whenever applicable. After all, AAO may review everything de novo anyway even when it has absolutely no reason to do so.

E. Some Alternate 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] [by 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. -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 [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. -OR-

(b) Evidence and processing. (1) Demonstrating eligibility. An applicant or petitioner must [ultimately] establish that he or she is [or was] eligible [to file] for the requested benefit at the time of filing the benefit request and[;] [not become ineligible by 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.


Footnotes

1 Please comment at: see here
2 Found at: see here or see here
3 See here


About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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