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Certain Issues Are NOT Regulated For Good Reasons While Others Remain Unregulated For No Good Reason!

by Joseph Whalen

I enjoyed the Migration Policy Institutes' live-streamed event of August 7, 2012, entitled: "The New Deferred Action Program: Strategies for Success", with featured speaker USCIS Director Alejandro Mayorkas, Moderator former INS Commissioner Doris Meissner, and invited commentators: Muzaffar Chishti, Marielena Hincapié, and David A. Martin. One key point in particular that I took away from it was made by Professor Martin who spoke of the need to refrain from "over-formalizing" this or any other exercises of discretion. If certain advocates were to get their way and have guidelines for prosecutorial discretionary placed into 8 CFR, then DHS would likely make them so onerous that they would be useless or simply never utilize them even if available per regulation. In other words, if "discretion" were made judicially reviewable by regulation, it would never be exercised in order to avoid ever being reviewed.

A similar theme is found throughout numerous judicial challenges to Orders of Removal that were upheld by the BIA. On this same day, the Fifth Circuit Court of Appeals reminds us via this passage from a non-precedential, per curiam summary decision in the petition for review styled: Tito Alvarado-Rabanales v. Eric Holder, Jr., No. 12-60055, (5th Cir. August 7, 2012).

"Alvarado also argues that the IJ and BIA should have exercised their authority to sua sponte reopen the April 7, 1998 order of removal. In Enriquez- Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004) , we held that because there are no meaningful standards set forth in the regulations against which to judge the discretionary authority to sua sponte reopen removal proceedings, we lacked jurisdiction to review whether the IJ erred by not exercising its sua sponte authority. Thus, we lack jurisdiction to review the IJ's and BIA's decisions not to reopen Alvarado's removal proceeding sua sponte. See Enriquez- Alvarado, 371 F.3d at 249-50; see also Lopez-Dubon v. Holder, 609 F.3d 642, 647 (5th Cir. 2010) ." At p. 3
The current and rather stale regulations leftover from Legacy INS which now largely govern USCIS contain some sua sponte authority specifically in "legalization cases", See 8 CFR § 103.5(b). In the alternative, the regulations also state, in plain English, that Officers have this inherent authority. 8 CFR § 103.5(a)(5) allows for a "Motion by Service officer" ... "on his or her own motion" and recognizes this authority of the Deciding Officer (or Official) to make a new and favorable decision without advance notice to the applicant or petitioner. However, when the tide has turned and the case is shifting from approval to impending denial, the applicant/petition must be afforded a chance to respond before a new administrative decision is issued. USCIS like Legacy INS can fall back on INA § 205's general authority to revoke petition approval "at any time, for what he deems to be good and sufficient cause," to support this position in most cases. In addition, there are old standby I&N Decisions lending further support.

The following is a rather ubiquitous blurb found in one of many AAO non-precedent Administrative Decisions:

"Section 205 of the Act, 8 U.S.C. 5 1155, provides: "The Secretary of Homeland Security, may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204." The realization by the director that the petition was approved in error may be good and sufficient cause for revoking the approval. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of Immigration Appeals (BIA) has stated:
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.
Id. (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). Finally, the approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the visa application process. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Id. at 589."

There are some decisions that further clarify and limit authority such as Matter of Arias, 19 I&N Dec. 568 (BIA 1988) , which held:

(1) A decision to revoke approval of a visa petition can only be grounded upon, and the petitioner is only obliged to respond to, the factual allegations specified in the notice of intention to revoke. (2) Observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship between the petitioner and the beneficiary do not provide "good and sufficient cause" for the issuance of a notice of intention to revoke approval of a visa petition and cannot serve as the basis for revocation, notwithstanding the petitioner's failure to timely respond to the notice of intention to revoke.
Another case that I find worthy of study is Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999) [ Decided by the Board on November 23, 1999, with a strong and sensible dissent].

The MAJORITY held:

"In order for a change in the law to qualify as an exceptional situation that merits the exercise of discretion by the Board of Immigration Appeals to reopen or reconsider a case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law."
(MAJORITY) ORDER: The motion is denied.p> "DISSENTING OPINION" : Lory Diana Rosenberg, Board Member, in which Gustavo D. Villageliu and John Guendelsberger, Board Members, joined


Our regulations empower us to reopen or reconsider sua sponte any case in which we have rendered a decision. See 8 C.F.R. § 3.2(a). We also possess the authority to certify cases to ourselves. See 8 C.F.R. § 3.1(c) (1999). As long as we remain within our appellate and subject matter jurisdiction, these discretionary powers are not limited, restricted, or qualified. The regulation at 8 C.F.R. § 3.1(d)(1) specifically delegates to this Board the Attorney General's authority to exercise discretion "as is appropriate and necessary for the disposition of the case." Thus, Congress and the Attorney General have entrusted us with considerable latitude to intervene in individual cases where fundamental fairness and the interests of justice so warrant. See Matter of Roman , 19 I&N Dec. 855, 856-57 (BIA 1988) (permitting collateral attack on a prior proceeding where there was "a gross miscarriage of justice" in that proceeding); see also Matter of Ng , 17 I&N Dec. 63 (BIA 1979) (involving a grant of nunc pro tunc permission to reapply for admission after deportation); Matter of Ducret , 15 I&N Dec. 620 (BIA 1976) (same); Matter of Vrettakos , 14 I&N Dec. 593 (BIA 1973, 1974) (same); Matter of S-N- , 6 I&N Dec. 73 (BIA, A.G. 1954).

In determining whether to exercise our delegated power under 8 C.F.R. § 3.2(a) to reopen and reconsider the respondent's claim, sua sponte, we should apply the test prescribed in Mathews v. Eldridge , 424 U.S. 319, 335 (1976), which takes into account three factors: the interest at stake for the individual; the risk of erroneous deprivation of that interest; and the Government's administrative burden. See Padilla-Agustin v. INS , 21 F.3d 970 (9th Cir. 1994); Hernandez v. Cremer , 913 F.2d 230 (5th Cir. 1990); Haitian Refugee Center, Inc. v. Nelson , 872 F.2d 1555 (11th Cir. 1989), aff'd sub nom. McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).

In balancing these factors, we conclude that the respondent's individual interest in a correct adjudication of his asylum claim leading to asylum protection in this country, and the danger of persecution he faces if returned to his country, outweighs the governmental interest in regulated time limits on the filing of motions or finality in immigration proceedings. See Kossov v. INS, 132 F.3d 405, 408 (7th Cir. 1998) (finding a fundamental failure of due process warranting a sua sponte remand where asylum applicants were not advised of their right to apply for asylum); see also Nazarova v. INS, 171 F.3d 478, 482-83 (7th Cir. 1999) (citing The Japanese Immigrant Case, 189 U.S. 86 (1903)); Asani v. INS, 154 F.3d 719, 728 (7th Cir. 1998) (concluding that the Board should have invoked its sua sponte authority to remand the case so that respondents could apply for suspension of deportation). We note, in addition, that in cases involving claims of persecution, the United States Government purportedly shares the respondent's interest in seeing that he is not wrongly returned to a country where he has faced or is likely to face persecution on account of a characteristic protected under the refugee definition .

We recognize that the respondent had an opportunity to set forth his claim of repeated incidents of mistreatment on account of his Jewish identity in what previously may have appeared to constitute a full and fair hearing, see Matter of G-D-, Interim Decision 3418, at 5 (BIA 1999); however, that hearing resulted in a denial of asylum that is called into question by our subsequent issuance of Matter of O-Z- & I-Z-, supra. Thus, this is not a situation in which there is no arguable lack of due process "because Petitioner had the benefit of a full hearing, against which he lodges no complaints." Cf. Dielmann v. INS, 34 F.3d 851, 853 (9th Cir. 1994) (rejecting a due process claim as "quite vague"). By contrast, the respondent's motion is precise and sets forth the exact basis on which our prior denial of asylum would now not stand under Board precedent.

In Matter of J-J-, 21 I&N Dec. 976 (BIA 1997), we explained that our sua sponte authority to reopen or reconsider cases was not intended as a general cure for filing defects or personal hardships. Citing Matter of J-J-, supra , the majority here trivializes the respondent's situation, implicitly casting his inability to reopen proceedings as a "hardship"-and a fairly common one at that. The respondent is not, however, asking us to remedy a "hardship"; he is asserting, correctly, that according to our own precedent in Matter of O-Z- & I-Z- , supra, he is eligible for asylum and that his case was wrongly decided by this Board. This is not a situation in which we may turn a blind eye in the name of administrative efficiency. ....." (Bold emphasis added.)

The majority holding once again was:
"In order for a change in the law to qualify as an exceptional situation that merits the exercise of discretion by the Board of Immigration Appeals to reopen or reconsider a case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law."
How can any part of that apply to current Administrative Appellate Reform efforts and the refinement of prosecutorial discretion and deferred action?
"In order for a change in the law to qualify as SOMETHING that merits the exercise of discretion OR JUDGMENT OR AUTHORITY by ANYBODY to DO ANYTHING, the change must be fundamental in nature and not merely an incremental development IN ANY GIVEN CONTEXT OR SITUATIION UNDER REVIEW OR in the state of the law."
It seems rather obvious that one fundamental change could quite naturally be an impetus for commensurate changes in associated ancillary matters. Such additional changes might themselves be fundamental or very close to it. Then ripple effects might extend far and wide. Sometimes, distance from the epicenter or a bird's eye view helps one gain perspective.

The Homeland Security Act of 2002 (HSA) was a fundamental change. Statutory authority shifted and a brand new Cabinet Secretary and huge executive branch department came into being. The creation of the Department of Homeland Security, the abolishment of the Immigration and Naturalization Service, the formation of U.S. Citizenship and Immigration Services and the assignment of the Administrative Appeals Office within a benefits granting agency are all fundamental changes. The exercise of sua sponte authority is but one ancillary matter to be reexamined in a new benefit-granting agency context rather than from an old law enforcement perspective.

It appears that the time for a major rulemaking is finally at hand which should provide better guidance to USCIS Officers, the AAO itself, and those who will practice before them. I understand that USCIS and AAO wish to use caution when rewriting the old regulations in this area but there has been far too much delay already. There should have been something published in March 2012, as per the DHS Regulatory Agenda published in January 2012. However, it is now August 2012, and being five months past due and counting is simply not acceptable.

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.