Different Reviews for Different Underlying INA Proceedings
In the broad array of varying types of proceedings in which legal provisions of the Immigration and Nationality Act (INA) are applied, enforced, or adjudicated; a wide variety of approaches, processes, and procedures come into play. Given the variable nature of the underlying proceedings, it is not surprising that the appellate reviews of those proceedings, when available, also vary in nature.
Certain unreviewable, summary judgments are at the sole discretion of the decision-maker and completely unreviewable through any enforceable right. That being said, reconsideration by that decision-maker through sua sponte action is always available. Additionally, even though a decision is “technically” unreviewable, the decision-makers do exist in the real world and in the real world, those decision-makers work for somebody. That “somebody” has an interest in making sure that their power and authority are being exercised, and that the law is applied, correctly, fairly, and appropriately. This reality check is necessary because in reality, the “decision-maker” is exercising statutory authority that has been vested in a particular Executive Branch Official. The main Officials are the Secretary of Homeland Security, Secretary of State, and the Attorney General. Although these Cabinet Level Officials are the main delegates named in the INA, they are not the only ones named. Additional Secretaries and the President, as well as the Courts, have specific authorities assigned to them by Congress. However, for purposes of this discussion, the big three Cabinet Level Officials will be sufficient. I will refer to their Departments and Agencies as needed. Here are some reference charts.
Above is a review of, and an introduction to, the major players in Immigration-related adjudications and enforcement under the INA. The next section will delve slightly deeper into the standards, processes, and procedures employed in the various underlying proceedings and their appellate reviews and/or motions and requests for reopening or reconsideration.
Approval for the type of visa, for which one may be found eligible and qualified for, is a minor accomplishment. It merely entails a showing of sufficient evidence to prove a relationship or certain qualifications. In essence, it is meeting a statutory definition. These adjudications are not discretionary; they address legal entitlements and merely involve legal interpretations and weighing evidence. These call for an application of sound judgment in interpreting the law and weighing that evidence. The mechanism for getting the U.S. government to acknowledge the relationship or qualifications is the visa petition. An approved petition merely says, “Yes, A is B’s father”, or “X has Y qualifications”, and nothing more. That is all a “classification” is. However, it does not end there for the intending immigrant.
The would-be immigrant most often starts out as the beneficiary of a visa petition. DHS through USCIS accepts and adjudicates visa petitions of many varieties. Visa petitions come in two broad categories with numerous sub-categories. The vast majority of immigrant visa petitions are family-based petitions but although not as plentiful, employment-based immigrant visa petitions are often more complex adjudications. These two broad categories are broken down further into many different “classifications”. The approval of a visa petition is merely a preliminary step and does not necessarily result in the issuance of an actual immigrant visa.
Family-based categories come in two broad varieties. The alien relative might be the “immediate relative” (IR) of a U.S. Citizen (USC) or a “preference” category relative of either a USC or lawful permanent resident (LPR) petitioner. The spouse, parent, and minor (unmarried, under 21 y/o) “child(ren)” of a USC has an immigrant visa “immediately available” for allocation under the statute and is therefore categorized as an Immediate relative (IR).
The USC may also petition for an unmarried adult (21 yrs and older) son or daughter (note: “child” is precisely defined by statute) as a family-based, first preference (FB-1), or a married son or daughter and their spouse and “child(ren)” as FB-3s, and lastly, the USC’s sibling (and his or her spouse and children) as FB-4s. That just leaves the FB-2s who are the relatives of LPR petitioners. F2-A is reserved for the spouse and minor (unmarried, under 21 y/o) “child(ren)”, and F2-B is for their unmarried adult (21 yrs and older) son or daughter and their minor (unmarried, under 21 y/o) “child(ren)”. Married sons and daughters of an LPR do not get visas, it is for that reason that many will remain unmarried, conceal marriages, or fraudulently divorce.
USCIS decides if the evidence presented by the petitioner establishes the claimed familial relationship. This can be quite complicated when dealing with folks from countries with very poor quality vital statistics records or rampant fraud. In addition, there are issues concerning the legality of marriages, divorces, adoptions, as well as issues relating to legitimation of a child born out-of-wedlock. There are fake marriages, fake divorces, fake death certificates, fake adoptions, and issues relating to incestuous relationships and polygamy. Often people will claim a younger sibling or a sibling’s child as his/her own child and that’s when blood tests or DNA tests may be requested. In the event of a denial of most family- based visa petitions, they have a right to appeal the decision to the Board of Immigration Appeals (BIA or Board) within the Executive Office of Immigration Review (EOIR) an agency within the Department of Justice (DOJ) and potentially appealable to the Attorney General (A.G.). Beyond that administrative path, judicial review is available.
All EB visa categories are “preference” visas. The significance of the “preference” system is that there are annual statutorily prescribed limits on the overall numbers of these visas, per country limits, and tiered levels tied to the desirability of having persons with certain qualifications come to the United States. The statute provides for five broad categories but some of them have multiple sub-categories.
USCIS accepts and adjudicates employment based visa petitions. Denials are appealable to the USCIS’ Administrative Appeals Office (AAO). Unfavorable AAO decisions may be challenged under the Administrative Procedures Act (APA) in a U.S. District Court which may be appealed further in the Courts. Not very many AAO Dismissals go beyond the District Court so the AAO has less binding court precedent to deal with. That situation might be viewed as good or bad, or more appropriately, it is “ambiguous”.
The decisions appealable to AAO most often entail a faceless, paper-based underlying adjudication from an inquisitorial process. AAO usually also performs a faceless, paper-based review and rarely ever hears oral argument. It is for these basic reasons that AAO may perform full de novo reviews of any case presented to it. AAO has jurisdiction over all employment-based visa petitions that have appeal rights.
AAO is currently supposed to be working on a Notice of Proposed Rulemaking (NPRM), which is past due. The DHS regulatory agenda and plan anticipated an AAO NPRM in March 2012, and that date has come and gone. We shall have to wait and see what happens.
Other USCIS Proceedings
Other underlying USCIS proceedings that involve face-to-face interviews have different administrative and judicial review and appeal paths. Adjustment of status (AOS) via form I-485, as well as affirmative asylum applications via form I-589, may be renewed in Removal Proceedings before an Immigration Judge (IJ). The IJ may grant or deny AOS, asylum, or certain other forms of relief from removal, or may order removal. The Removal Order may be appealed to the BIA. When the BIA upholds the IJ, that decision may be appealed to the U.S. Circuit Court of Appeals for that jurisdiction.
When USCIS denies naturalization, there is a local field office “second hearing” available via form N-336. When that challenge fails, the applicant for naturalization may request de novo review in the U.S. District Court of jurisdiction. As with other District Court cases, an unfavorable decision may be further appealed in the courts.
The BIA reviews decisions from two major distinct venues. The IJ cases involve face-to-face adversarial proceedings. Those cases result from an IJ’s observations as to credibility of testimony and often such judgments may be based, at least in part, on demeanor. It is because of that element of the IJ proceeding that the BIA may not engage in full de novo review of an IJ’s fact-finding. In such matters, the BIA is confined to “clear error” review. Legal issues remain open for de novo review.
When the BIA reviews USCIS family-based visa petition denials, it is similarly situated to AAO and retains full de novo review authority. The underlying immigration adjudication was a faceless, paper-based inquisitorial proceeding. The evidence may be re-weighed under a different (i.e., correct) standard of proof or the appellate reviewer(s) may substitute their own judgment for that of the adjudicator below.
Application for a Visa
The DoS Consular Officers interview most applicants for a visa (both immigrants and non-immigrants) at Embassies or Consulates abroad. They have greater discretion to refuse to issue a visa and such decisions are generally unreviewable. As mentioned above, certain administrative checks and balances do exist in reality. Challenges to visa refusals are made all the time. The rates of success are unknown to this writer but I would hazard a guess that successful challenges are probably in the minority.
Application for Admission
When an individual seeks to enter the United States, he or she must present them self to a CBP Inspector at a Port-of-Entry (POE). The inspector may readily grant admission or might deny admission. Denials come in varying forms. Often, people are put back on the vessel that brought them to the U.S. and returned. Crew members might not be allowed to disembark (denied laning). They might be formally denied with entries made in databases to block them from coming back for a set period. They might be allowed to “withdraw their application for admission” with no negative consequences. They might be subjected to formal “expedited removal”. They might be formally removed through a reinstated prior order of removal. They could be deferred to secondary inspection, or referred for a “credible fear interview”, or referred to an Immigration Judge for an “asylum-only” proceedings, or it could be a formal Removal Proceeding. CBP might issue an NTA itself or turn the alien over to ICE for detention and further processing. When someone ends up before an IJ, they generally go through what was discussed above, except for the “asylum-only” proceeding, which is less open to further review.
The various other proceedings that enforce, administer or apply provisions under the INA are less well know and affect fewer individuals. OCAHO hears cases lodged against employers who have violated certain INA provisions in the hiring process or who have hired unauthorized workers.
Such “employer sanction” charges are usually preferred by ICE, sometimes with the help of USCIS through E-Verify information. ICE may file charges with OSC (Office of Special Counsel for Unfair Immigration-Related Employment Practices) or employees and job applicants may contact OSC directly. OSC may file charges with OCAHO or decline to do so. Complaints might then be lodged directly to OCAHO when OSC declines.
As was mentioned in a footnote, the Department of Labor (DOL) has a role to play in foreign labor employment-based cases. DOL has a multi-tiered appeals system that I will not even try to describe let alone explain. Suffice to say that certain decisions are subject to requests for reconsideration and still others may be formally appealed. Some cases might proceed to judicial review.
The underlying approaches amongst the various agencies is diverse. The powers exercised are variable. It is no surprise that the options available as to reconsiderations, reopening, or appeal also vary. Certain challenges are quite limited to an administrative path alone. Others have a long path before reaching a court and a few have a fast path to judicial review. In short, it is complicated.
 See Consular Corner by Liam Schwartz in Immigration Daily at: http://www.ilw.com/articles/2012,0629-schwartz.pdf
 DOL and HHS have key roles not germane to this discussion.
 The DoS Visa Bulletin will state F1, however, that may confused folks because F-1 is the visa category for a non-immigrant academic student. I will use FB for certain family based categories and EB for employment-based.
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.