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An Open Letter to USCIS Offering A Suggestion For A Generally Applicable USCIS Policy of Fairness

by Joseph P. Whalen

While it is true that an agency is generally bound by its regulations and precedents, it is also true that agencies write their own regulations and set many of their own precedents. Courts review agency actions, regulations, and precedents and may overrule, void, or invalidate them as may Congress through legislative action. A well run agency will police itself and avoid getting slapped down by the courts or Congress. Being blindly and overly hidebound is an undesirable characteristic in an appellate body. While a certain reverence for and appreciation of the wisdom of history is appropriate. It has its limits. Changes are inevitable and when the time is right and an issue is ripe, change is desirable. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters". Earl Warren was a powerful force of change, if not for his insights, the hidebound Supreme Court Justices of his time would have decided Brown[1] differently and our current society would be vastly different as a result.

Individual Officers and Employees Cannot Give Appeal Rights Where None Exist

Following from: Jan062009_01D13101.pdf

"When the director denied the petition on October 10, 2008, the director provided instructions on how to appeal the decision to the AAO. This language was included in error, because the regulations in effect at that time contained no provision to allow the petitioner to appeal the denial of an R-1 nonimmigrant visa petition. The director's erroneous inclusion of appeal instructions in the denial notice does not supersede the regulations or give the AAO the authority to accept R-1 appeals filed at that time. The regulation is binding on U.S. Citizenship and Immigration Services (USCIS) employees in their administration of the Act, and USCIS employees do not have the authority to allow for appeal rights where none exist. See, e.g., Panhandle Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 1 120 (C.A.D.C., 1979) (an agency is bound by its own regulations); Reuters Ltd. v. F.C. C., 78 1 F.2d 946, (C.A.D.C.,1986) (an agency must adhere to its own rules and regulations; ad hoc departures from those rules, even to achieve laudable aims, cannot be sanctioned). An agency is not entitled to deference if it fails to follow its own regulations. U.S. v. Heffner, 420 F.2d 809, (C.A. Md. 1969) (government agency must scrupulously observe rules or procedures which it has established and when it fails to do so its action cannot stand and courts will strike it down); Morton v. Ruiz, 415 U.S. 199 (1974) (where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures)."

An Administrative Appellate Body's Authorities Have Been Likened To Those Of A Circuit Court Of Appeals Over A District Court

"Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director incorrectly advised the petitioner that it had appeal rights, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana Pfhilharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S. Ct. 51 (2001)."

Some things simply cannot be helped, other things can. USCIS Officers and the AAO must know and recognize the difference, then act accordingly.

USCIS needs to ensure fairness in all its actions and decisions in order to avoid having procedures imposed on it by outside forces that just don't understand the intricacies and nuances involved in running a majority fee-funded agency.

One way to ensure fairness would be to set an Agency-wide Policy for the liberal but proper use of discretionary authority to right procedural and substantive wrongs. The proper use of the sua sponte motion is one mechanism available for that purpose, fee waivers are another, and let's not forget expedited processing for humanitarian and emergent situation. Such stated Policy is preferable to having regulations overly scrutinized by a court that could decide that it is ultra vires or void on its face or overruled by a subsequent legislative action or higher court precedent. USCIS would be best served by being proactive.
Jul012010_01F1101.pdf Orphan Petition Case Remanded to be treated as a Motion. [Los Angeles, CA]

"The field office director revoked approval of the petition on October 9, 2009. It is noted that the field office director improperly gave notice to the petitioner that an appeal could be filed within 30 days of the revocation decision. However, the field office director's improper notice to the petitioner regarding the time period during which an appeal may be filed does not extend the regulatory requirement that the appeal of a revocation decision issued by mail must be filed within 18 days. U.S. Citizenship and Immigration Services (USCIS) received the petitioner's Form I-290B, Notice of Appeal, on November 12, 2009, 34 days after the field office director's decision was issued. Accordingly, the appeal was untimely filed.

Neither the Act nor the pertinent regulations grant the AAO authority to extend the time limit for filing an appeal. As the appeal was untimely filed, the appeal must be rejected. Nevertheless, the regulation at 8 C.F.R. 103.3(a)(2)(v)(B)(2) states that, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case.

A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy. 8 C.F.R. 103.5(a)(3). A motion to reconsider must also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. Id. A motion that does not meet the applicable requirements shall be dismissed. 8 C.F.R. 103.5(a)(4).

Here, the untimely appeal appears to meet the requirements of a motion. The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the field office director. See 8 C.F.R. 103.5(a)(l)(ii). Therefore, the field office director must consider the untimely appeal as a motion and render a new decision accordingly.

ORDER: The appeal is rejected. The matter is returned to the field office

Some cases are treated equitably, others are treated harshly and seemingly irrationally. The AAO would necessarily have reviewed any case to determine if it qualified to be treated as a Motion. In this Orphan Petition case they got it right. As for the following case, well, you be the judge.

However, be mindful that the following AAO Decision involved an N-600, Application for Certificate of Citizenship. The generally controlling regulation for the N-600 is 8 CFR 341.6 and also 320 and 322 (for an N-600K).

Mar062010_01E2309.pdf Earlier Appeal Rejected as Untimely & This Motion Rejected as Untimely

DISCUSSION: The application was denied by the Field Office Director, El Paso, Texas. The Administrative Appeals Office (AAO) rejected the subsequent appeal as untimely filed. The applicant has submitted a motion to reconsider. The motion will be rejected.

The field office director denied the application on December 11, 2008. On January 14, 2009, applicant's counsel filed an appeal seeking review of the director's decision. The AAO rejected the appeal as untimely because it was filed more than 33 days after the issuance of the director's decision. Pursuant to the regulations, any appeal that is not filed within the time allowed must be rejected as improperly filed. 8 C.F.R. 103.3(a)(2)(v)(B)(l).

The applicant, through counsel, has now submitted a motion seeking reconsideration.

As the appeal was rejected by the AAO, there is no decision on the part of the AAO that may be reconsidered in this proceeding. According to 8 C.F.R. 103.5(a)(l)(ii), jurisdiction over a motion resides in the official who made the latest decision in the proceeding. The AAO did not enter a decision on the merits in this matter. Because the disputed decision was rendered by the director, the AAO has no jurisdiction over the applicant's motion and the motion must be rejected.

ORDER: The motion to reconsider is rejected.

WOW! Can anybody say "Catch-22"? Do you see what happens when AAO does not enter a decision on the merits of the case? This is an erroneous application of the incorrect regulations and AAO did not explain the applicant's legal Appeal Rights at any stage in the processing of this case. Read on, it only gets worse.

The AAO Rejection or Dismissal of a citizenship claim case exhausts the normal administrative review which makes the case ripe for filing in the U.S. District Court of jurisdiction. AAO routinely fails to inform denied citizenship claimants of this right. From the USCIS side, it is in the agency's best interest to only allow fully legally supported and well-reasoned Dismissals to be challenged in a U.S. District Court or Circuit Court of Appeals.

In addition, by dismissing out of hand, and without addressing any of the merits itself or incorporating the prior decision with or without clarifications or modifications, AAO will turn the initial agency decision into the final agency decision for all practical purposes in the District or Circuit Court review of the matter. This may not be a wise move. After all, in order to come to the conclusion that an untimely appeal does not meet the requirements of a motion, AAO has to review the record of proceeding first. Since AAO is going to the trouble of doing the review, why not state something substantive? AAO retains the plenary power of de novo review and uses it in all cases anyway. Why not adopt some procedures to make use of that de novo review?

When such a case reaches the Ninth Circuit Court of Appeals, they will rip the AAO apart. They will again chastise USCIS for failing to follow its own regulations as to properly informing the denied Certificate of Citizenship applicant of their Appeal Rights. At that stage the proper Appeal Rights consisted of U.S. District Court Judicial Review per INA 360(a) or if concurrent Removal Proceedings were a factor, an eventual Petition for Review in a Circuit Court of Appeals if Ordered Removed per INA 242(b)(5).

The citizenship claimant may seek judicial review of the final agency decision on their case, by filing a Petition for Declaratory Judgment of U.S. Nationality (or Citizenship) in a U.S. District Court under INA 360(a) [8 U.S.C. 1503(a)] and pursuant to 28 U.S.C. 2201. An alternate path to judicial review is involved when one is Ordered Removed as that case then goes to a Circuit Court of Appeals.

By using a broader brush, you can paint yourself into a corner all that much faster!

Aug102007_01E2309.pdf Appeal Improperly Rejected following Improper Denial

DISCUSSION: The district director, Seattle, Washington , denied the application . The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected .

The district director concluded that the applicant had abandoned his Form N-600, Application for Certificate of Citizenship (Form N-600 Application) by failing to respond to requests for additional evidence in his case. The Form N-600 application was denied accordingly.

On appeal, the applicant asserts that he submitted a CIS change of address form prior to September 2006. The applicant asserts that he did not receive the district director's September 6, 2006, Request for Evidence (RFE), because it was erroneously sent to his previous address.1 The applicant asks for further information about the CIS requested evidence, and he asks for the opportunity to have his Form N-600 application adjudicated.

Title 8 of the Code of Federal Regulations (8 C.F.R.) 103.2(b) (13) states in pertinent part:

[If] all requested initial evidence and requested additional evidence is not submitted by the required date, the application or petition shall be considered abandoned and, accordingly, shall be denied.

The regulation provides in pertinent part at 8 C.F .R. 103.2(b) (15) that:

[A] denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under Sec. 103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new application or petition with a new fee.

In the present matter, the district director determined that the applicant's Form N-600 application was abandoned. Under 8 C.F.R. 103.2(b)(l5), a denial due to abandonment cannot be appealed to the AAO. The applicant's appeal must therefore be rejected.

ORDER: The appeal is rejected.

_____________________

1. It is noted that the record of proceedings does not contain a change of address form.

{Did anyone check the AR11 screen in NIIS? That was the system at that time.}

WOW! Totally mishandled from the start. A TRUE Denial Due to Abandonment under 8 CFR 103.2(b)(15) or as specifically described for N-600 cases for failure to prosecute is prohibited under 8 CFR 341.6! ALL Certificate of Citizenship cases have Appeal Rights, even when denied for failure to prosecute!

After the appeal period expires only Motions may be filed. No subsequent N-600s are allowed. Only appeals and motions are allowed. HOWEVER, there is a statutory Judicial Review available by filing a Petition for Declaratory Judgment of U.S. Nationality (or Citizenship) in a U.S. District Court under INA 360(a) [8 U.S.C. 1503(a)] and pursuant to 28 U.S.C. 2201 BUT AAO NEVER advises anyone about it as required by 8 CFR 103.3(a)(1)(i) and 341.6.

AAO has issued some real stinkers[2] with regard to being too hidebound to certain regulations and precedents considered in a void or grossly out of context. Some of the things that have come out of AAO could be, should be, and eventually, will be ripped apart by the courts. Their shield to greater criticism and public scrutiny, ridicule and/or outrage is that AAO Decisions usually only get challenged in U.S. District Courts and only rarely wind up in a Circuit Court of Appeals. Kazarian (9th Cir. 2010) is the biggie right now and AAO has finally asked for help through the recent request for Amicus Briefs. Mine's in the mail.

That said, AAO also comes up with some marvelous gems as well but they are well hidden and it seems to take forever to get a worthy Decision published as Precedent. My gosh, Chawathe was decided January 11, 2006, but did not get published until October 20, 2010, and even worse, Al Wazzan [3] was initially decided by AAO a year earlier on January 12, 2005, but came out as Precedent the same day as Chawathe!

While the subject of proper exercise of discretion and decision uniformity is addressed somewhat in the AFM and some policy interpretations, gaps remain to be filled. AFM 10.15 addresses the exercise of discretion and the desire for uniformity in decisions. AFM 10.3 (e) points out the need for sound judgment in decision-making. These concepts are not easy ones to grasp and apply properly let alone be uniformly considered.

A clear directive with plenty of examples would help EVERYONE!.

There is already some specific guidance available but it largely refers adjudicators back to the regulations and Precedents. An adjudicator is not allowed sufficient time to get immersed in the Precedents which will be thrown back in their faces. That is an unfair labor practice by USCIS. If USCIS won't allow its adjudicators the time to become self-taught, then the agency must fill the gap with up-to-date and concise interpretive information and training.

AFM 10.15 Exercise of Discretion; Uniformity of Decisions.

Although all types of adjudications involve proper application of laws and regulations, a few also involve an exercise of discretion: adjustment of status under section 245 of the Act, change of status under section 248 of the Act and various waivers of inadmissibility are all discretionary applications, requiring both an application of law and a consideration of the specific facts relevant to the case.

An exercise of discretion does not mean the decision can be arbitrary, inconsistent or dependant upon intangible or imagined circumstances. Although regulations can provide guidelines for many of the types of factors which are appropriate for consideration, a regulation cannot dictate the outcome of a discretionary application. [See, for example, HHS Poverty Guidelines in Appendix 10- 3 .] For each type of adjudication, there is also a body of precedent case law which is intended to provide guidance on how to consider evidence and weigh the favorable and adverse factors present in a case. The adjudicator must be familiar with the common factors and how much weight is given to each factor in the body of precedent case law. The case law and regulatory guidelines provide a framework to assist in arriving at decisions which are consistent and fair, regardless of where the case is adjudicated or by whom.

It will be useful, particularly for inexperienced adjudicators, to discuss unusual fact patterns and novel cases requiring an exercise of discretion with peers and supervisors. In particularly difficult or unusual cases, [especially matters of first impression] the decision may be certified for review to the Administrative Appeals Office. Such certifications may ultimately result in expansion of the body of precedent case law. Discretionary decisions or those involving complex facts, whether the outcome is favorable or unfavorable to the petitioner or applicant, require supervisory review.

NOTE

Even in non-discretionary cases, the consideration of evidence is somewhat subjective. For example, in considering an employment-based petition, the adjudicator must examine the beneficiary's employment experience and determine if the experience meets or exceeds, in quality and quantity, the experience requirement stated on the labor certification by the employer. However, a subjective consideration of facts should not be confused with an exercise of discretion. Like an exercise of discretion, a subjective consideration of facts does not mean the decision can be arbitrary, inconsistent or dependant upon intangible or imagined circumstances.

I urge USCIS Director Mayorkas to state a clear position on this matter taking into account the broad authority already in existence and being creative with it.

8 CFR
PART 103-POWERS AND DUTIES; AVAILABILITY OF RECORDS
103.7 Fees.

*****

(d) Exceptions and exemptions. The Director of USCIS may approve and suspend exemptions from any fee required by paragraph (b)(1)(i) of this section or provide that the fee may be waived for a case or specific class of cases that is not otherwise provided in this section, if the Director determines that such action would be in the public interest and the action is consistent with other applicable law. This discretionary authority will not be delegated to any official other than the USCIS Deputy Director.

*****

(f) Authority to certify records. The Director of USCIS, or such officials as he or she may designate, may certify records when authorized under 5 U.S.C. 552 or any other law to provide such records.

8 CFR 103.5 Reopening or reconsideration.

(a) Motions to reopen or reconsider in other than special agricultural worker and legalization cases -

(1) When filed by affected party -

*****

(iv) Effect of motion or subsequent application or petition. Unless the Service directs otherwise, the filing of a motion to reopen or reconsider or of a subsequent application or petition does not stay the execution of any decision in a case or extend a previously set departure date.

(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because:

(i) The requested evidence was not material to the issue of eligibility;

(ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

(iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address.

(3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

(4) Processing motions in proceedings before the Service. A motion that does not meet applicable requirements shall be dismissed. Where a motion to reopen is granted, the proceeding shall be reopened. The notice and any favorable decision may be combined.

(5) Motion by Service officer -

(i) Service motion with decision favorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision in order to make a new decision favorable to the affected party, the Service officer shall combine the motion and the favorable decision in one action.

(ii) Service motion with decision that may be unfavorable to affected party.

When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief.

The officer may extend the time period for good cause shown.

If the affected party does not wish to submit a brief, the affected party may waive the 30-day period.

(6) Appeal to AAU from Service decision made as a result of a motion. A field office decision made as a result of a motion may be applied to the AAU only if the original decision was appealable to the AAU.

(7)* Other applicable provisions. The provisions of 103.3(a)(2)(x) of this part also apply to decisions on motions. The provisions of 103.3(b) of this part also apply to requests for oral argument regarding motions considered by the AAU.

(8) Treating an appeal as a motion. The official who denied an application or petition may treat the appeal from that decision as a motion for the purpose of granting the motion.

*8 CFR 103.3 Denials, appeals, and precedent decisions.

(a) Denials and appeals - [ALL Decisions are in writing. These are not confined to an Approval or Denial Notice. IF a favorable decision results in a Certificate or the issuance of some other document such as: a EAD, greencard, EAD/AP combo card, re-entry-permit, advance parole, or refugee travel document-that counts.]

*****

(2) AAU appeals in other than special agricultural worker and legalization cases

*****

(x) Decision on appeal. The decision must be in writing. A copy of the decision must be served on the affected party and the attorney or representative of record, if any.

*****

(b) Oral argument regarding appeal before AAU -[This is very RARE.]

(1) Request. If the affected party desires oral argument, the affected party must explain in writing specifically why oral argument is necessary. For such a request to be considered, it must be submitted within the time allowed for meeting other requirements.

(2) Decision about oral argument. The Service has sole authority to grant or deny a request for oral argument. Upon approval of a request for oral argument, the AAU shall set the time, date, place, and conditions of oral argument.

The "Service Motion" sometimes now called "USCIS Motion" or simply "Government Motion" is a Sua Sponte Motion. Commonly, this is accepted to mean "On Our Own Motion".

sua sponte

: (sooh-uh spahn-tay) adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case. These include an order transferring a case to another judge due to a conflict of interest or the judge's determination that his/her court does not have jurisdiction over the case.

Above from: http://dictionary.law.com/Default.aspx?selected=2032

What concepts can USCIS borrow from other sources? Can certain sister agency regulations be imported wholesale or would some adjustments be required?

8 CFR
PART 1003-EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Subpart C-Immigration Court-Rules of Procedure
1003.23 Reopening or reconsideration before the Immigration Court.

(b) Before the Immigration Court -

*****

(4) Exceptions to filing deadlines -

*****

(iv) Jointly filed motions. The time and numerical limitations set forth in paragraph (b)(1) of this section shall not apply to a motion to reopen agreed upon by all parties and jointly filed.

8 CFR
PART 1003-EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Subpart A-Board of Immigration Appeals
1003.2 Reopening or reconsideration before the Board of Immigration Appeals.

(a) General. The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by the party affected by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

These few regulations and cases are only a starting point. Please address this issue in some meaningful way as you see fit. I urge the USCIS Director to exercise his broad authority to set a workable Policy that allows the agency to correct its mistakes that would if uncorrected adversely affect the rights of its customers. My personal pet peeve is the gross mishandling of N-600s, but there are plenty of other routine injustices that happen everyday across the entire spectrum of application and petition types.

Service Center, District and Field Office Directors and a huge cadre of "Supervisors" (ACDs, Branch Chiefs, Deputies, SDAOs, SCAOs, SIIOs, SAOs, CROs, and various Acting whatevers) need to be able to promptly but legally right a wrong and in doing so, be fair, equitable, and serve to promote high quality customer service and public relations. I know that a few individuals might have to reigned-in from time-to-time but overall, justice and fairness would be served.

Lastly, when exercising such sua sponte authority to right a wrong, and/or waive a fee, and/or authorize expedited processing; such a Policy Directive can direct and demand that such occurrences be properly documented and promptly reported at least for the purposes of:

tracking of any and all discretionarily waived fees, and/or
statistical analysis, and/or
identifying a variety of trends, and/or
identifying areas of "special needs and/or concerns", and/or
identifying training needs, and/or
identifying areas in which procedures need review/further study, and/or
identifying areas in which procedures need corrections and revisions.


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.

____________________________________________________________ Footnotes

1Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which allowed state-sponsored segregation. Handed down on May 17, 1954, the Warren Court's unanimous (9-0) decision stated that "separate educational facilities are inherently unequal." As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This ruling paved the way for integration and the civil rights movement. http://en.wikipedia.org/wiki/Brown_v._Board_of_Education
2 See attached "Catch-22 of N-600 Appeals", "AAO N-600 Decisions 2010" and "Basic N-600 Regulations". That last one includes the summary and supplementary information from the 1985 FR 341.6 promulgation.
3Footnote 2 in original: After the director denied the underlying immigrant visa petition, the petitioner filed a complaint for declaratory and injunctive relief in the United States District Court, Central District of California. Al Wazzan (USA), Inc. v. Tom Ridge, CV04-6575-NM (RZX) (filed Aug. 9, 2004). On November 15, 2006, the district court entered judgment in favor of the Government.


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