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< Back to current issue of Immigration Daily

The Attorney General Is NOT A Proper Defendant When Challenging An N-400 Denial Or Any Other USCIS Decision!

by Joseph P. Whalen

I am shocked at the poor quality of some of the cases being filed in District Courts around the country in exhibiting some grossly incompetent fundamental errors! Far too many Immigration Practitioners need more practice. Beyond the poor challenges in courts, there are still far too many mistakes in the underlying administrative proceedings as well.

For those of you did not know (yes they do exist), INS does not exist anymore! The Attorney General is not the head of USCIS and has not "delegated" anything to the Secretary of Homeland Security in immigration, nationality, or citizenship cases.

The principal Cabinet Level Official specifically named in the INA, as amended who has the primary authority to administer the INA domestically is the Secretary of Homeland Security. It is shocking to me that some practitioners are so out of touch with their own practice area that they don't know that the Homeland Security Act of 2002 (HSA) lead to DHS being created and INS being abolished as of March 1, 2003!

This scares me. Does it scare you too? It should because the remainder of immigration practitioners are tainted by them. I have seen some outrageous mistakes but can only include a few examples here. These are real problems!


  • Making inquiries, whether by phone calls, e-mail, online, or via InfoPass appointments is not sufficient to exhaust administrative appeals.

  • Administrative Closure or Termination of Removal Proceedings by an IJ for DHS' failure to prove alienage is not an affirmative recognition of U.S. Citizenship. The IJ lacks legal authority for that.

  • A favorable exercise of discretion is not an enforceable legal right.

  • Very few benefits under the INA are actually entitlements and some that are may be qualified entitlements available only if not barred.

  • The child of a friend or relative who is specifically released for adoption to a specific person can never be an "orphan" under the law in relation to that adoption.

  • An I-526 or I-829 appeal is not the appropriate venue to seek an amendment to a Regional Center's scope and operational parameters. See Izummi.

  • The filing fee for a visa petition is paid to adjudicate the eligibility for the actual benefit requested, you can't change the request after it gets denied (or after filing ). The fee has been spent so you need to file a new petition instead of an I-290B.

  • The preponderance of evidence cannot overcome missing required evidence.

  • The burden of proof for any benefit or relief is on the person seeking it.

  • Burden-shifting exists in the Removal Context but not in the Benefits Context.

  • Benefits requests are inquisitorial in nature rather than adversarial.

  • Removal Proceedings start out as adversarial in nature with the burden on DHS/ICE to show alienage and removability.

  • Burden-shifting is extremely common in Removal Proceedings when relief is sought and the nature of the proceeding fundamentally transforms into the Benefits Context.

  • No amount of ineffective assistance of counsel (IAC) claims can transform a ineligible person into an eligible person in the Benefits Context.

  • IAC claims relate only to the Removal Context.

  • In the Benefits Context, if new evidence becomes available or there is a fundamental change in the law Motions are viable options.

  • In the Benefits Context, if ineffective assistance of counsel happened, then new petitions or applications (including appeals and motions) may serve as a new opportunity to try again.

  • Withdrawing a fraudulent or frivolous application or petition will not prevent negative consequences of the initial bad act. One may be temporarily or permanently barred or a finding of material misrepresentation may still be made.

  • Waivers are are not guaranteed even when showing prima facie eligibility.

  • Deference to prior decisions is not guaranteed.

  • Only certain findings-of-fact are binding in later proceedings.

  • Credibility determinations are usually binding absent gross error, deceit, or fraud.

  • Material changes are not automatically fatal and can be curative.

  • Providing solid evidence of an irrelevant fact is a waste of everyone's time.
  • Stop the slop! Also, please stop obsessing about irrelevant minutia and focus on the pertinent issues in case preparation and presentation. The more well prepared the case is adjudicated faster, no matter the outcome.


    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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