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Purpose of Initial Evidence and the Prima Facie Showing

by Joseph P. Whalen

When someone files a petition or application for a benefit or relief under the INA they must follow the filing instructions. Forms need to be properly completed; signed by someone authorized to sign it; and accompanied by any required fee, or a fee waiver request. The vast majority of requests submitted must also be accompanied by minimum required initial evidence or in the relief context sometimes this will be described as making a prima facie showing in the case, especially when seeking to reopen a case through a Motion to the BIA. The Relief from Removal and Affirmative Benefits Request contexts are similar but distinct.

While EOIR through its Immigration Judges (IJs) or the Board of Immigration Appeals (BIA or Board) can exercise the authority of the Attorney General and bestow certain benefits as prescribed under the INA, those benefits are usually bestowed as a matter of discretion to grant relief from an alternate penalty which would usually be removal from the United States. If an alien is ordered removed and later finds a pathway to a benefit under the INA, (s)he might seek to reopen proceedings in order to apply for such benefit as a means of gaining relief from removal. There are limits on the alien's legal options or available procedural mechanisms after the Order of Removal has been entered. One must make a strong case for the Order of Removal to be set aside in favor of relief. Therefore, the BIA properly denies a Motion to Reopen because of a failure to establish prima facie eligibility for the relief sought. See Huang v. Att'y Gen., 620 F.3d 372, 389-90 (3rd Cir. 2010).

Most benefits available under the INA are bestowed through an affirmative direct request for them through the filing of a petition or application. The primary statutory authority to administer the INA within the United States is vested in the Secretary of Homeland Security [or DHS]. The principal formal benefits granting arm of DHS is the United States Citizenship and Immigration Services (USCIS). This is not to say that only USCIS decides to grant or deny INA benefits. The United States Customs and Border Protection agency (CBP) actually grants and denies far more benefits but the vast majority of those benefits are not determined through formal written petitions and applications. Instead, CBP decides whether to admit or refuse to admit individuals making application for permission to enter the United States at our land border or other ports-of-entry (POEs) including by sea or air. That said, USCIS deals with the formal written requests for complex immigration, naturalization, nationality and/or citizenship benefits plus many additional collateral and interim benefits.

The majority of of benefits under the INA are discretionary and bestowed or denied though an exercise of delegated discretionary authority. Some INA benefits are qualified entitlements that are available unless one is legally barred from receiving it, i.e., disenfranchised by law. Precious few INA benefits are entitlements claimed as a legally enforceable right once eligibility is fully established with sufficient, credible, and satisfactory evidence as proof of such entitlement. The most obvious example of an entitlement under the INA is citizenship whether by birth in the U.S. (with a few obscure exceptions), or by acquisition at birth abroad, or through later derivation, (now called automatic acquisition), by action of law.

Another "benefit" under the INA which is often not thought of as an entitlement is an entitlement but without any immediate, automatic, or tangible benefit. That "non-benefit entitlement" is classification in a visa category. The entitlement to a visa classification is a simple recognition of the establishment of statutorily prescribed and defined facts satisfactorily proven with credible evidence. The attainment of a visa classification is merely an initial or interim step towards obtaining an immigrant visa. The path towards attaining any visa classification is variable. There are a wide variety of immigrant and non-immigrant visa classifications. Some are harder to qualify for or prove than others. Some rely on simple evidence such as a birth certificate to show the relationship between mother and child. Other classifications require the submission of large amounts of complex evidence such as an I-140, Immigrant Petition for Alien Worker for an EB-1 "alien of extraordinary ability". This following excerpts are from the review of just such a case.

".... If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 204.5(h)(3). Only aliens whose achievements have garnered "sustained national or international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. 1153(b)(1)(A)(i)."

Kazarian v. USCIS, 596 F.3d 1115, 3436 (9th Cir. 2010). [Emphasis added.]

".... While other authors' citations (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence. 8 C.F.R. 204.5(h)(3). ...."

Kazarian, supra at 3441. [Emphasis added.]

"[5] The AAO's conclusion rests on an improper understanding of 8 C.F.R. 204.5(h)(3)(iv). Nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with. Again, while the AAO's analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement. Love Korean Church, 549 F.3d at 758."

Id., at 3442 [Emphasis added.]

Through Kazarian, the Ninth Circuit pointed out that this particular visa classification requires the petitioner to first answer an "antecedent procedural question" by way of submitting the minimum required initial evidence. 8 CFR 204.5(h)(3) or (4). After that first threshold is crossed, there is a further need to evaluate the evidence in order to determine if the totality of that evidence answers the overarching and/or underlying eligibility questions. That process culminates in a "final merits determination." While Kazarian is used to support a "two-step analysis" consisting of a quantitative component followed by a qualitative analysis and evaluation, the concept of initial evidence is broader than that one application. Context plays a major role in determining the relative importance of the initial evidence and the prima facie showing of eligibility to file for further consideration.

For example, the acceptance for filing of an I-485, Application to Register Permanent Residence or Adjust Status, entitles the applicant to the interim benefit of work authorization. However, in order to file an I-485, one must be eligible to file. The mere eligibility to file an I-485 is determined by specific required initial evidence which has been predetermined to show prima facie eligibility to file for adjustment of status. The initial demonstration of prima facie evidence of eligibility it not a guarantee of ultimate approval of that adjustment of status. That's my two-cents, for now.

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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