Advance COMMENTS ON NPRM ON REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS

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COMMENTS ON NPRM: REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS PAGE 1

Submitted by:

Joseph P. Whalen

238 Ontario Street, No. 6

Buffalo, NY 14207

(716) 604-4322 (cell/text)

(716) 768-6506 (land-line)

[email protected]

ADMINISTRATIVE APPEALS OFFICE (AAO)

U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

DEPARTMENT OF HOMELAND SECURITY (DHS)

ATTN: CHARLES "LOCKY" NIMICK

20 Massachusetts Ave., NW, MS 2090

Washington, D.C. 20529-2090

RIN 1615-AB98

DUPLICATE OF 1615-AB29

ADVANCE COMMENTS ON NPRM:

REQUIREMENTS FOR FILING MOTIONS

AND ADMINISTRATIVE APPEALS

I. Notice of Proposed Rule Making (NPRM).

The Department of Homeland Security (DHS) published routine notice1 in the Federal

Register on December 15, 2015, at 80 FR 77710, 77778-79,2 which is included in Part II of

the issue and attributed to the Regulatory Information Service Center. The notice

announced, inter alia, the Departments upcoming intended regulatory and/or deregulatory

actions, listed by agency. Among the items listed therein is one for USCIS which is the

focus of this brief. AAO has been in need of its own regulatory update for many years, long

before the creation of DHS. Its rule has been on and off the regulatory agenda numerous

times in those years. It is imperative that this effort not fail to reach fruition once again.

1 This preliminary item in a regulatory agenda is not a formal Notice of Proposed Rule Making (NPRM). 2 https://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdf

mailto:[email protected]://www.regulations.gov/#!documentDetail;D=DHS-2015-0080-0002http://www.regulations.gov/#!documentDetail;D=DHS-2015-0080-0002https://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdfhttps://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdf

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There have been paradigmatic shifts in the realm of immigration, nationality,

naturalization, and citizenship law that beg a regulatory update for administrative appeals.

II. Background and Form I-290B.3

The Form I-290B, Notice of Appeal or Motion, is available for use by dissatisfied

customers in order to challenge a decision issued by USCIS, including AAO. This form

may be submitted in order to file a motion to whosoever made the last decision on the

merits of the case. It is important to note that a motion to reopen an application or petition

that was denied due to abandonment (also described as for a lack of prosecution) has

special restrictive rules which will not be mentioned further in this brief.

Anyway, the above statement means that the same form is used for multiple types of

requests. It is critical for the person filing the I-290B to be absolutely certain that they

check the correct box on the form indicating what type of request is actually being filed. If

the wrong box is checked, the file containing that form and request might be misdirected

from the start, only to be ultimately rejected, dismissed, or denied on a technicality. Folks

need to remember that it will not be a fully trained Adjudicator that will be opening the

mail and processing the payment. That is basic clerical work which will be performed by a

clerk who is probably not a federal employee at all but instead, a contractor who is trained

only to perform a very limited function and no more.

III. Improvements to the Immigration System.

As things now stand, the exhaustion of administrative appeals is not mandatory for

the vast majority of adjudications performed by USCIS. In the recent Federal Register

announcement, under the heading Improvements to the Immigration System very

little detail was offered about the anticipated AAO rule making. However, in my opinion,

3 http://www.uscis.gov/i-290b

http://www.uscis.gov/i-290b

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the most telling information is buried in the middle of the single paragraph displayed

below.

Requirements for Filing Motions and Administrative Appeals. USCIS will

propose to revise the procedural regulations governing appeals and motions to reopen

or reconsider before its Administrative Appeals Office, and to require that

applicants and petitioners exhaust administrative remedies before seeking

judicial review of an unfavorable decision. The changes proposed by the rule will

streamline the procedures before the Administrative Appeals Office and improve the

efficiency of the adjudication process. 80 FR 77710, 77778 (12-15-2015).

Based on a comprehensive review of the planned USCIS regulatory agenda, it is

evident that USCIS is slated to promulgate several rulemakings to directly support its

commitment to, and goals of:

providing clear and useful information regarding the immigration process;

especially regarding processes and procedures for submitting, and supporting

benefits requests;

promoting the values of citizenship; and

assisting those in need of humanitarian protection.

It is the substance of the second bullet point above which will best be served through

an AAO rule making. The public and agency personnel need better guidance on the

processes and procedures in the realm of motions and appeals. With that said, USCIS in

general, and AAO in particular need to resist the urge to embed too much process and

procedure in the regulations. This was a problem for INS, and USCIS has unfortunately

inherited a lot of it. Effective procedural regulations will be broad-based and flexible but

still have clear outer limits.

IV. Requirements for Filing Motions and Administrative Appeals.

The current USCIS (including AAO) regulations pertaining to motions and appeals are

outdated and inadequate. That statement is nothing more than what the agency itself has

openly acknowledged and publicly proclaimed. However, before moving forward, we

need to look back, or at least take stock of where we currently are. The following

observations are based on a quick study of current motion regulations.

https://www.gpo.gov/fdsys/pkg/FR-2015-12-15/pdf/2015-30690.pdf

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Please take for example the regulation at 8 C.F.R. 103.5(3). To say that a motion to

reconsider must be supported by precedent decisions, is too restrictive. It ignores that such

a motion could be based on a change in the law, perhaps when, as does happen, the

Supreme Court strikes down a law as unconstitutional. On the other hand, to say that a

motion to reconsider must explain how and/or why a decision, was then, or is now, (as

applicable) legally incorrect, is specific yet still open-ended. It is my opinion that the

latter (open) is preferable to the former (closed), in a processual or procedural regulation.

A. MOTION TO REOPEN (MTR or MTReopen)

The current regulation requires that [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. See 8 C.F.R. 103.5(2). So this type of motion is based on

new facts. New facts ought to be based upon newly discovered and thus newly

acquired, documentary evidence, and/or newly discovered information. Often AAO will

make a big stink about dates on documents that show that the document existed at the

time of the prior adjudication. Notwithstanding the prior existence of the document, if it

is pertinent to eligibility, AAO will usually thoroughly examine it. If the previously

existing documents prove worthless, AAO will state something like: even if they were

properly submitted, they would have: made no difference, or proven nothing, or not

have helped demonstrate eligibility. The underlying principles of the rules of evidence

evolved in a different context than benefits adjudications and need to be distinguished

from them. In other words, benefits adjudications need their own modified rules.

B. MOTION TO RECONSIDER (MTR or MTReconsider)

The current regulation requires that [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 [DHS or USCIS]

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

http://www.ecfr.gov/cgi-bin/text-idx?SID=3040d7a11d75c063d7b617b37f35b154&mc=true&node=se8.1.103_15&rgn=div8http://www.ecfr.gov/cgi-bin/text-idx?SID=3040d7a11d75c063d7b617b37f35b154&mc=true&node=se8.1.103_15&rgn=div8

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of the initial decision. See 8 C.F.R. 103.5(3). This type of motion hinges on a

legal question being answered differently than it was previously. It is based on a

mistake, a different legal interpretation usually explained in brilliant argument in a

brief, or possibly new law has come into existence which is retroactive or favorable

even if only applied prospectively, or as AAO has stated below, new arguments may

flow from new law or could lead to legal reinterpretation, i.e. a de novo interpretation.

A motion to reconsider cannot be used to raise a legal argument that could have

been raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220

(BIA 1990, 1991).4 Rather, the "additional legal arguments" that may be raised in a

motion to reconsider should flow from new law or a de novo legal determination

reached in its decision that could not have been addressed by the party. Matter of O-

S-G-, 24 I&N Dec. 56, 58 (BIA 2006).5 Further, a motion to reconsider is not a

process by which a party may submit, in essence, the same brief presented on appeal

and seek reconsideration by generally alleging error in the prior decision. Id. Rather,

the moving party must specify the factual and legal issues raised on appeal that were

decided in error or overlooked in the initial decision or must show how a change in

law materially affects the prior decision. Id. at 60.

Matter of C-B-A-, ID# 14665 (AAO Dec. 10, 2015), at 2, or DEC102015_01B5203.pdf6

C. COMBINED MOTION TO REOPEN & RECONSIDER (MTRR)

To say the least, this type of motion is the most difficult to support and sustain in

full because it must meet more points than either type alone. One might think that this

would be the least frequent type submitted but one would be wrong. Many desperate

and/or confused people submit combined motions because of profound uncertainty.

They do not know which type, if either, would be the correct type for their case or if

they could meet one set of criteria but not the other and hope that the USCIS or AAO

4 http://www.justice.gov/eoir/vll/intdec/vol20/3138.pdf 5 http://www.justice.gov/eoir/vll/intdec/vol24/3548.pdf 6 http://www.uscis.gov/sites/default/files/err/B5%20-

%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%2

0Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdf

http://www.ecfr.gov/cgi-bin/text-idx?SID=3040d7a11d75c063d7b617b37f35b154&mc=true&node=se8.1.103_15&rgn=div8http://www.justice.gov/eoir/vll/intdec/vol20/3138.pdfhttp://www.justice.gov/eoir/vll/intdec/vol20/3138.pdfhttp://www.justice.gov/eoir/vll/intdec/vol24/3548.pdfhttp://www.justice.gov/eoir/vll/intdec/vol24/3548.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.justice.gov/eoir/vll/intdec/vol20/3138.pdfhttp://www.justice.gov/eoir/vll/intdec/vol24/3548.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdfhttp://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2015/DEC102015_01B5203.pdf

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adjudicator will figure it out for them. This is a back-end kitchen sink approach to

case preparation and presentation. In fact, if only one type of motion is sufficiently

presented, AAO can and frequently does address only that one motion, on the merits.

The above statement does not mean that it is successful on the merits. It only means

that it met prima facie eligibility criteria in order to be considered a properly filed and

submitted motion. In other words, at least one type of motion meets the antecedent

procedural hurdle in order to make it eligible to be assessed on the merits. If either or

both types of motion does not suffice on a technical level, it or they will frequently be

summarily dismissed without reaching the merits. With that said, even a sloppily

prepared case can succeed on the merits if it is meritorious and dismissal would result

in a grave injustice. I believe that the quintessential example would be the claim to

United States citizenship. Even the most hard-hearted adjudicator cannot withhold a

finding of citizenship and thus a certificate based on a nonsensical technicality. To do

so would undoubtedly leave the agency, as a whole, wide open for negative criticism.

An unjust result would easily be overturned by any sane District Court Judge in an

APA review as arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law. See 5 U.S.C. 706(2)(A). AAO would be serving its own

interests in adopting flexible regulations, written to support an adjudication style for its

appellate reviews geared to result in decisions that would be upheld on APA review.

Only by recognizing the endgame, can one plan to win.

D. APPEALS

An administrative appeal is a request for a higher administrative authority to

reexamine the case in full. How do I know this? Well, after searching the regulations,

the USCIS website, including the AAO pages and Practice Manual, I could not find a

definition and had to look elsewhere. Online, I looked for legal definitions which

spoke only of lower and higher courts. Then I searched for the term Administrative

Appeal which generally ascribed them to State Agencies but can easily be translated to

any government agency review of a decision by a higher authority. It was only left to

http://uscode.house.gov/view.xhtml?req=(title:5%20section:706%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section706)&f=treesort&edition=prelim&num=0&jumpTo=true

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determine a workable definition of the word appeal. I settled for what I found from

thefreedictionary.com which told me this:

Timely resort by an unsuccessful party in a lawsuit or administrative proceeding

to an appropriate superior court empowered to review a finaldecision on the ground

that it was based upon an erroneous application of law.

When a case is initially denied, the written decision will inform the recipient about

appeal rights. Some case types are not afforded administrative appeal rights. When

there is no administrative appeal, there is still the option to submit a motion. Some folks

will skip the filing of a motion and instead file a lawsuit in a U. S. District Court under

the Administrative Procedures Act (APA). Certain very limited situations prohibit this

course when the administrative case is instead referred to the Immigration Court

system. When a case goes through EOIR and is ultimately dismissed in an appeal to the

BIA and an Order of Removal issues, the Circuit Court of Appeals will be the correct

venue for further action.

Unfortunately, 8 C.F.R. 103.3 fails to define the word appeal or state its

purpose or requirements. Instead, the regulation addresses disqualifications. Other

general regulations state that form instructions are incorporated into the pertinent

regulation. In the case of the Form I-290B, there is one pertinent item that tells us about

an appeal. It states that for an Appeal: Provide a statement that specifically identifies

an erroneous conclusion of law or fact in the decision being appealed. Elsewhere, the

dissatisfied customer is informed that a brief and/or additional evidence may be filed

but none is required. In fact, nothing is required beyond the simple statement in

challenge of the initial decision. When it comes to filing the form and initial

processing, the appeal is filed at the address indicated on a chart found at

http://www.uscis.gov/i-290b-addresses which is referenced in the form instructions and

thereby incorporated in the regulations. Regarding initial case processing, AAO

http://legal-dictionary.thefreedictionary.com/appealhttp://www.uscis.gov/i-290b-addresses

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recently issued a Policy Memorandum7 about that. In short, whosoever issued the

denial must look over the case in light of whatever was submitted and may treat it like a

motion but only for the purpose of approving the underlying benefit request.

AAO is in a unique position among immigration-related administrative appellate

bodies. Its Appeals Officers are still adjudicators firmly attached to USCIS. If the

decision of AAO is to sustain an appeal, it can also grant the underlying application or

petition, or order it approved. I have argued before that AAO and BIA exist in

qualitatively different adjudicative systems, and because of that, many precedents by

one is not always applicable to the other.

V. Suggestions for Changes to Regulations for Motions and Appeals.

A. Mandatory Exhaustion of Administrative Appeals to AAO

Presently, there is no legal requirement to exhaust administrative appeals before

seeking judicial review for most benefits requests adjudicated by USCIS. The

anticipated AAO NPRM is expected to change that situation. Even though USCIS has

not yet mandated its appeals forum through regulation, many courts include strong

language in their analyses advocating administrative exhaustion. I cannot recall finding

a mandamus action being approved when readily available AAO appeals have been

bypassed. There are certain benefits requests that have no appeal rights but do have

motion rights. I have not seen courts demand that course be exhausted. Lastly, there are

certain benefits requests that have statutorily proscribed procedures to follow before

reaching any court for review and judicial review procedures when they get there.

77 http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1104_Initial_Field_Review_PM_APPROVED.pdf

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1104_Initial_Field_Review_PM_APPROVED.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015-1104_Initial_Field_Review_PM_APPROVED.pdf

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B. Standard of Review

In virtually every appeal before it, AAO reserves the plenary power to review

anything on a de novo basis. This standard is not specified in the Immigration and

Nationality Act (INA) or USCIS implementing regulations. The blanket de novo review

employed by AAO has been ascribed to a cobbled together string of federal cases.

Aside from several oft-cited Circuit Court and District Court cases, AAO relies on a

general statute for its wide-open appellate review. The Administrative Procedures Act8

(APA) Pub. L. 79404, 60 Stat. 237, enacted June 11, 1946, was passed by Congress in

order to provide uniformity and relief to the millions of Americans who routinely dealt

with federal government agencies and regulations. AAO quite frequently uses the

following blurb as a footnote; see also my footnote 10, which repeats Dors footnote 9:

We conduct appellate review on a de novo basis. Matter of Simeio Solutions,

LLC, 26 I&N Dec. 542 (AAO 2015)9; see also 5 U.S.C. 557(b) ("On appeal from or

review of the initial decision, the agency has all the powers which it would have in

making the initial decision except as it may limit the issues on notice or by rule.");

Dor v. INS, 891 F.2d 997, 1002 n.910 (2d Cir. 1989). We follow the preponderance of

8 See: http://www.justice.gov/jmd/ls/administrative-procedure-act-pl-79-404 9 https://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdf

10 [9] The principal Justice Department units with adjudicative roles in immigration are: 1) the Executive Office for Immigration Review, (which is composed of the Immigration Judges, and as appellate authority, the BIA); and 2)

the INS (which is composed of District Directors, and as appellate authority, the AAU). See Legomsky, Forum Choices for

the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L.Rev. 1297, 1308 (1986). To avoid

confusion, it should be stressed that the BIA and the Immigration Judges are no longer (since 1983) formally part of

the INS.

The Attorney General sits atop these two divisions. The allocation of adjudicatory responsibility between the

Executive Office for Immigration Review and the INS does not lend itself to simple explanation or summary. The

Immigration Judges issue both exclusion and deportation orders, among other things. INA 236(a), 242(b), 8 U.S.C.

1226(a), 1252(b) (1982). District Directors decide visa petitions, (8 C.F.R. 204.1), adjustment of status applications, (

245.2, 245.6), extensions of stays for nonimmigrants, ( 214.1-2, etc.)

The AAU consists of five "appellate examiners" and the Chief of the Unit, none of whom is an attorney. Each case is

considered de novo by one of the appellate examiners and reviewed by the Chief, whose decision prevails in the event of a

conflict. Decisions of the AAU are published very infrequently.

The BIA has five members, all attorneys, and all of whom participate in every case. See 8 C.F.R. 3.1(a)(1), and

Legomsky, Forum Choices, supra. They are assisted by a staff of attorney examiners. The BIA selects, for publication,

precedent decisions that will bind the INS and the Immigration Judges. 8 C.F.R. 3.1(g).

https://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdfhttps://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdfhttps://scholar.google.com/scholar_case?case=8118772906451688760&q=Dor+v.+INS,+891+F.2d+997&hl=en&as_sdt=6,33&as_vis=1http://www.justice.gov/jmd/ls/administrative-procedure-act-pl-79-404https://edit.justice.gov/sites/default/files/eoir/pages/attachments/2015/04/16/3832.pdfhttps://scholar.google.com/scholar_case?case=8118772906451688760&q=Dor+v.+INS,+891+F.2d+997&hl=en&as_sdt=6,33&as_vis=1#r[10]

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the evidence standard as specified in Matter of Chawathe, 25 I&N Dec. 369,375-76

(AAO 2010).

Matter of S-S-, Inc., ID# 15195 (AAO Dec. 9, 2015) or DEC092015_04D2101.pdf at 1.11

The aforementioned cases that seem to embrace the de novo review standard are

actually superfluous in that the APA already allows for it without any judicial blessing

required. 5 U.S.C. 557(b) provides in pertinent part, On appeal from or review of

the initial decision, the agency has all the powers which it would have in making the

initial decision except as it may limit the issues on notice or by rule. Unlike the

BIA, AAO has issued no regulation that would actually limit or guide its appellate

reviews. I believe that the failure to do so is a disservice to USCIS customers and

Officers who cannot plan for an unknown standard.

C. Presumption of Reasonableness

When an appellant has failed to demonstrate that the adjudicator below did not

consider a factor that:

(1.) should have received significant weight,

(2.) gave significant weight to a factor it should have discounted, or

(3.) made a clear error of judgment when it balanced the relevant factors;

then he has not rebutted the presumption of reasonableness when the outcome of his

case is in line with applicants or petitioners similarly situated. See United States v.

Cooks, 589 F. 3d 173, 186 (5th Cir. 2009); United States v. Nikonova, 480 F. 3d 371,

376 (5th Cir. 2007). Where an argument that boils down to a disagreement with the

balancing of the pertinent factors in a fact-specific, fact-dependent judgement will not

be entertained by reviewing courts; the same refusal to consider such an argument is

appropriate in administrative appeals. See Gall v. United States, 552 U.S. 38, 51- 52

(2007) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621

11 http://www.uscis.gov/sites/default/files/err/D2%20-

%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-

1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdf

http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdfhttp://www.justice.gov/eoir/vll/intdec/vol25/3700.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://uscode.house.gov/view.xhtml?req=(title:5%20section:557%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section557)&f=treesort&edition=prelim&num=0&jumpTo=truehttps://www.courtlistener.com/opinion/69193/united-states-v-cooks/?https://www.courtlistener.com/opinion/69193/united-states-v-cooks/?https://www.courtlistener.com/opinion/48277/usa-v-nikonova/http://www.ca5.uscourts.gov/opinions/unpub/15/15-50449.0.pdfhttp://www.ca5.uscourts.gov/opinions/unpub/15/15-50449.0.pdfhttps://law.resource.org/pub/us/case/reporter/US/543/543.US.220.htmlhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdfhttp://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2015/DEC092015_04D2101.pdf

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(2005). While Booker primarily deals with sentencing guidelines (and states that they

are advisory only, not mandatory), it also provides basic guidance on the concept of

reasonableness and counsels against blind rigidity in what are essentially subjective but

not discretionary areas of consideration. In other words, balancing tests are qualitative

analyses and evaluations which must be reviewed in the same or similar manner as the

initial determination, generally for reasonableness based upon substantial evidence.

D. MTReopen

In appeals to the BIA, it is possible for an individual to assert a claim to ineffective

assistance of counsel (IAC) due to the injustice than can result from it. Motions to

reopen may be based on IAC claims must meet the requirements set forth in Matter of

Lozada, 19 I&N Dec. 637 (BIA 1988). Lozada held, in pertinent part:

(1) A motion to reopen or reconsider based upon a claim of ineffective assistance

of counsel requires:

(1) that the motion be supported by an affidavit of the allegedly aggrieved

respondent setting forth in detail the agreement that was entered into with

counsel with respect to the actions to be taken and what representations

counsel did or did not make to the respondent in this regard,

(2) that counsel whose integrity or competence is being impugned be

informed of the allegations leveled against him and be given an opportunity

to respond, and

(3) that the motion reflect whether a complaint has been filed with

appropriate disciplinary authorities with respect to any violation of counsel's

ethical or legal responsibilities, and if not, why not.

[Slight reformatting for clarity.]

The problem with Lozada is that it is virtually inapplicable to benefits requests. In

benefits adjudications, the primary consideration is eligibility. The requestor is either

eligible or ineligible. The only potential effects that an IAC claim might have are in

tolling a response deadline which was missed due to negligence of counsel, or allowing

a late filing because the option was unidentified by ineffective counsel. The Lozada

https://law.resource.org/pub/us/case/reporter/US/543/543.US.220.htmlhttp://www.justice.gov/eoir/vll/intdec/vol19/3059.pdfhttp://www.justice.gov/eoir/vll/intdec/vol19/3059.pdf

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factors go further than necessary for the extremely limited relief potentially available in

the benefits context. In acquiescence to Lozada (1)(3), the errant attorney or accredited

representative should probably, as a minimum requirement, be reported to DHS and/or

EOIR Disciplinary Counsel12 but be allowed to do it concurrently.13 As for Lozada

(1)(1), without it there is no claim, but (1)(2), could be dropped if the suggestion for

(1)(3) is accepted and implemented because disciplinary proceedings before the BIA

are fair, with safeguards already built in. If agreeable to any of these suggestions, they

would not take up much space in a new regulation. These points are offered as

comments from an advocate for quality adjudications.

E. MTReconsider

If motions to reconsider are themselves reconsidered in a new AAO processual and

procedural rule then I urge openness and flexibility over limitations and

restrictions. The current regulation demands support from Precedent Decisions but

what about situations and cases that challenge the status quo? Moving forward will it

forever be necessary for a Circuit Court of Appeals to invalidate an earlier INS

Precedent? Will AAO never even consider revisiting earlier Administrative Precedents?

Looking to the past for guidance is worthwhile, but AAO seems to have missed those

many cases that overruled, modified, distinguished, reaffirmed, followed, or reinstated

earlier decisions, in part or in whole. In sum, reconsideration can be supported by new

law, matters of first impression, reinterpretations, or efforts to keep pace in a rapidly,

radically changing world. Serious legal arguments need serious consideration by AAO.

12 DHS and EOIR Disciplinary Counsel always alert each other of complaints anyway.

13 http://www.justice.gov/eoir/submit-complaint & http://www.justice.gov/sites/default/files/eoir/legacy/2014/08/26/eoir44.pdf

http://www.justice.gov/eoir/submit-complainthttp://www.justice.gov/sites/default/files/eoir/legacy/2014/08/26/eoir44.pdf

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F. MTRR (Combined Motion)

As mentioned above, combined motions are the most difficult to craft and support.

They require meeting the independent criteria for two separate types of motions. It is

also important to keep in mind that combined motions are frequently the last bastion of

the incompetent or desperate. When pro se combined motions are filed, it is often a

direct result of an inability to pay for professional legal assistance. However, when a

combined motion is filed by counsel or accredited representative it will either be worth

serious consideration or be frivolous (or darn close). I urge AAO to adopted sanction

authority via notice-and-comment rule making, so that it may publicly and privately

censure practitioners due to filing patently frivolous appeals or motions. It would also

be worth the effort for AAO to adopt an expedited process for referral to Disciplinary

Counsel.

G. Motions In General

AAO sometimes wastes its efforts with bizarre and convoluted forays into the

absurd. Such absurdities usually come along in its weird and strict efforts to avoid

addressing the merits of the case before it. I suggest that AAO adopt a rule that allows

and encourages reaching the merits of the case whenever possible. On the other hand,

AAO should also have the authority to summarily dismiss meritless motions and

appeals, perhaps utilizing a simple form or form-letter, and maybe such simple form

could have standard language and check-boxes. Those motions and appeals that are

truly meritless and a waste of time and effort should be treated in summary fashion for

pure utilitarian reasons, i.e. waste as little time and effort as possible.

H. Appeals

The number one item for consideration for the NPRM is to actually define the word

appeal in AAOs regulations. The number two item on the AAO agenda needs to be

codification of the basic requirement for an appeal. As already recognized in the Form

I-290B instructions, an appellant must include a statement that specifically identifies an

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erroneous conclusion of law or statement of fact in the decision being appealed but may

also include new evidence and additional arguments because AAO can review de novo.

Another major area of concern that AAO may wish to address in its regulations are

the maximum timeframes for the filing of appeals and motions. Such regulations need

to provide more flexibility while seeking to prevent abuse of the system. Perhaps

allowing a longer initial filing period, such as 90 days, but discontinuing the ability to

request an automatic extra 30 days to file a brief. In addition, since the initial period

suggested here is triple the current time, AAO should discourage requesting an

extension by making it highly difficult to obtain and assigning the ability to do so as

purely discretionary but only upon a clear and convincing demonstration of a need for

one. If the ability for practitioners to drag out filings in a piecemeal fashion in order to

demand multiple payments from clients is curtailed, quality of briefs should improve.

I. Federal Rules of Practice and Procedure As Models

The Chief Justice just released the Supreme Courts 2015 Year-End Report in

which he emphasized the significance of the newly released updated version of The

Federal Rules of Practice and Procedure14 which consists of a set of five volumes, plus

a set of standard forms, now being posted online as opposed to strictly printed versions.

Parts of these rules may be of use to AAO in creating some of its rules and/or guidance.

The first three of the volumes linked below will probably be more useful than the rest.

1) Federal Rules of Appellate Procedure:15

Table of Contents

Title I Applicability of Rules

14 http://www.uscourts.gov/rules-policies/current-rules-practice-procedure

15 FORMS: http://www.uscourts.gov/rules-policies/current-rules-practice-procedure/appellate-rules-forms

https://www.federalrulesofappellateprocedure.org/https://www.federalrulesofappellateprocedure.org/table-of-contents/https://www.federalrulesofappellateprocedure.org/title-i/http://www.uscourts.gov/rules-policies/current-rules-practice-procedurehttp://www.uscourts.gov/rules-policies/current-rules-practice-procedure/appellate-rules-forms

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Title II Appeal from a Judgment or Order of a District Court

Title III Appeals from the United States Tax Court

Title IV Review or Enforcement of an Order of an Administrative Agency, Board,

Commission, or Officer

Title V Extraordinary Writs

Title VI Habeas Corpus; Proceedings In Forma Pauperis

Title VII General Provisions This contains many useful possibilities.

2) Federal Rules of Civil Procedure:

Table of Contents

Title I Scope of Rules; Form of Action

Title II Commencing an Action; Service of Process; Pleadings, Motions, and Orders

Title III Pleadings and Motions

Title IV Parties

Title V Disclosures and Discovery

Title VI Trials

Title VII Judgment

Title VIII Provisional and Final Remedies

Title IX Special Proceedings

Title X District Courts and Clerks: Conducting Business; Issuing Orders

Title XI General Provisions

Title XII Appendix of Forms [Abrogated] To be online16 moving forward.

16 http://www.uscourts.gov/forms/pro-se-forms

https://www.federalrulesofappellateprocedure.org/title-ii/https://www.federalrulesofappellateprocedure.org/title-iii/https://www.federalrulesofappellateprocedure.org/title-iv/https://www.federalrulesofappellateprocedure.org/title-iv/https://www.federalrulesofappellateprocedure.org/title-v/https://www.federalrulesofappellateprocedure.org/title-vi/https://www.federalrulesofappellateprocedure.org/title-vii/https://www.federalrulesofcivilprocedure.org/https://www.federalrulesofcivilprocedure.org/frcp/https://www.federalrulesofcivilprocedure.org/frcp/title-i/https://www.federalrulesofcivilprocedure.org/frcp/title-ii/https://www.federalrulesofcivilprocedure.org/frcp/title-iii-pleadings-and-motions/https://www.federalrulesofcivilprocedure.org/frcp/title-iv-parties/https://www.federalrulesofcivilprocedure.org/frcp/title-v-disclosures-and-discovery/https://www.federalrulesofcivilprocedure.org/frcp/title-vi-trials/https://www.federalrulesofcivilprocedure.org/frcp/title-vii-judgment/https://www.federalrulesofcivilprocedure.org/frcp/title-viii-provisional-and-final-remedies/https://www.federalrulesofcivilprocedure.org/frcp/title-ix-special-proceedings/https://www.federalrulesofcivilprocedure.org/frcp/title-x-district-courts-and-clerks-conducting-busines-issuing-orders/https://www.federalrulesofcivilprocedure.org/frcp/title-xi-general-provisions/https://www.federalrulesofcivilprocedure.org/frcp/title-xii-appendix-of-forms/http://www.uscourts.gov/forms/pro-se-formshttp://www.uscourts.gov/forms/pro-se-forms

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Title XIII Supplemental Rules for Admiralty or Maritime Claims and Asset

Forfeiture Actions

3) Federal Rules of Evidence:

Table of Contents

Article I General Provisions

Article II Judicial Notice

Article III Presumptions in Civil Cases

Article IV Relevance and its Limits

Article V Privileges

Article VI Witnesses

Article VII Opinions and Expert Testimony

Article VIII Hearsay

Article IX Authentication and Identification

Article X Contents of Writings, Recordings, and Photographs

Article XI Miscellaneous Rules

4) Federal Rules of Criminal Procedure: Of little use here.

5) Federal Rules of Bankruptcy Procedure: Of even less use here.

J. Special Classes, Cases, and Treatment

If one can manage to work their way through the myriad of possibilities presented

in the foregoing rules, there will likely be a few choice morsels and useful tidbits. One

thing that I want everyone to recognize is that courts have powers that are different

from administrative tribunals. While AAO has stated that its relationship to the

adjudicators below is similar to that Circuit Courts of Appeals to District Courts, that

relationship has critical difference which guide my comments. Courts of Equity have at

their disposal associated equitable powers. Some situations faced by USCIS customers

https://www.federalrulesofcivilprocedure.org/frcp/title-xiii/https://www.federalrulesofcivilprocedure.org/frcp/title-xiii/https://www.rulesofevidence.org/https://www.rulesofevidence.org/table-of-contents/https://www.rulesofevidence.org/article-i/https://www.rulesofevidence.org/article-ii/https://www.rulesofevidence.org/article-iii/https://www.rulesofevidence.org/article-iv/https://www.rulesofevidence.org/article-v/https://www.rulesofevidence.org/article-vi/https://www.rulesofevidence.org/article-vii/https://www.rulesofevidence.org/article-viii/https://www.rulesofevidence.org/article-ix/https://www.rulesofevidence.org/article-x/https://www.rulesofevidence.org/article-xi/https://www.federalrulesofcriminalprocedure.org/https://www.federalrulesofbankruptcyprocedure.org/

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seem to cry out for equitable solutions which out of fairness, the agency would

probably like to pursue and offer, but is not legally allowed to do so.

i. Court Approved Settlements

Over the years, USCIS, and Legacy INS before it, have been sued many

times. Numerous lawsuits either have been filed as class actions from the start,

or evolved into one. Whether the Judge directed it or the agency saw the

inevitable loss coming, many Settlements have been entered. USCIS has a

webpage17 devoted to them, three are posted for 2015, alone. Not all settlements

involve a class and thus are usually kept private; that is, the terms within them

are not made public. Only vague references to private settlements are found in

some of AAOs posted decisions. The terms remain a mystery to me because,

they tend to be blocked from general access in the court online system, PACER.

ii. Court Approved Stipulations

I checked a multitude of sources online for the definition of the word

stipulation.18 They all shared some basic elements. A stipulation is an

agreement between the attorneys from both sides of a dispute. They also

invariably state this in the context of a judicial proceeding, i.e., in a court battle.

The various sources I consulted indicated that courts usually like it when the

parties can reach an agreement outside of the courtroom which the court merely

needs to bless but can, and usually does, retain control over for monitoring

and enforcement purposes. Stipulations save limited resources which judges

really appreciate. Like a settlement, stipulations need a courts approval.

17 http://www.uscis.gov/laws/legal-settlement-notices/uscis-settlement-notices-and-agreements 18 http://legal-dictionary.thefreedictionary.com/stipulation and http://www.merriam-

webster.com/dictionary/stipulation and http://dictionary.reference.com/browse/stipulation and

http://www.vocabulary.com/dictionary/stipulation

http://www.uscis.gov/laws/legal-settlement-notices/uscis-settlement-notices-and-agreementshttp://www.uscis.gov/laws/legal-settlement-notices/uscis-settlement-notices-and-agreementshttp://legal-dictionary.thefreedictionary.com/stipulationhttp://www.merriam-webster.com/dictionary/stipulationhttp://www.merriam-webster.com/dictionary/stipulationhttp://dictionary.reference.com/browse/stipulation

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iii. Equitable Estoppel

As mentioned above, settlements and stipulations require a courts approval.

The reason for the need for a courts approval is that they tend to draw authority

from the common law principle of equitable estoppel. Our Article III courts

were a formal codification of, in part, of common law courts of equity. Powers

within those common law courts of equity, unless specified otherwise in

statutory law, remain available in U.S. courts. Equitable estoppel is a protective

legal principle which either bars or commands some action. For example, if

USCIS previously accepted some form of evidence or testimony as a

longstanding practice but decided to abruptly stop, it would undoubtedly lead to

lawsuits, maybe a class action. Initially, an injunction would throw up a blanket

protection against negative consequences. After reaching a certain point in the

dispute, a court is likely to order mediation or perhaps the parties would have

voluntarily entered into negotiations. To avoid unfair and unjust results, while

disallowing anyone from gaining a benefit through fraud and misrepresentation,

certain processes and procedures would be hammered out. Certain facts would

be agreed upon in a series of stipulations as part of a settlement, which a court

could accept as is, or could modify or reject, especially, if the parties agreed to

something not amenable with a statute or the Constitution. Administrative

agencies lack common law powers our courts inherited from courts of equity.

iv. Prosecutorial Discretion

While administrative agencies lack common law powers our courts inherited

from courts of equity, they have other tools available to them. Executive branch

agencies are in charge of enforcing the law. They have the power to proscribe

regulations which will guide the implementation of those laws; how agencies

will discharge their duties, and how the affected public is expected to comply.

As primarily a benefits determination agency much of USCIS regulation

concern application and adjudication processes and procedures. With that said,

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USCIS, as part of DHS, does have the ability to issue a notice to appear (NTA)

for removal proceedings. In addition, if USCIS denies certain benefits, that

circumstance can leave an individual amenable to exclusion or deportation,

collectively, removal from the United States. USCIS can exercise prosecutorial

discretion by declining to issue an NTA. Also, while not prosecutorial

discretion, per se, USCIS can grant certain forms of relief such as temporary

protected status (TPS) or, either significant public benefit or humanitarian

parole.19

v. Discretionary Abeyance

Similar to prosecutorial discretion or equitable tolling, the act of not

rushing into action is an option. Holding an action in abeyance is simply the

withholding of adjudication. See 8 C.F.R. 103.1(b)(18).20 The regulation

specifies authority to withhold adjudication when an investigation has been

undertaken, this could easily be expanded. When adjudication is withheld it

can be very frustrating for the requestor of that benefit but it might also be done

in their best interest. One may ask how that can be. If the immediate decision

would be a big fat denial, and possibly stripping the alien of interim benefits

19 Advance parole is not the same because it is an interim benefit, not prosecutorial discretion.

20 Withholding adjudication. USCIS may authorize withholding adjudication of a visa petition or

other application if USCIS determines that an investigation has been undertaken involving a

matter relating to eligibility or the exercise of discretion, where applicable, in connection with the

benefit request, and that the disclosure of information to the applicant or petitioner in connection

with the adjudication of the benefit request would prejudice the ongoing investigation. If an

investigation has been undertaken and has not been completed within one year of its inception,

USCIS will review the matter and determine whether adjudication of the benefit request should be

held in abeyance for six months or until the investigation is completed, whichever comes sooner.

If, after six months of USCIS's determination, the investigation has not been completed, the matter

will be reviewed again by USCIS and, if it concludes that more time is needed to complete the

investigation, adjudication may be held in abeyance for up to another six months. If the

investigation is not completed at the end of that time, USCIS may authorize that adjudication be

held in abeyance for another six months. Thereafter, if USCIS determines it is necessary to

continue to withhold adjudication pending completion of the investigation, it will review that

determination every six months.

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such as advance parole and employment authorization, then a delay can be a

good thing. As for applicability to AAO, holding a decision in abeyance can be

in everyones best interest when an underlying critical legal question is wending

its way through the courts, or at the BIA, BALCA, or AAO itself, etc... This is

especially appropriate when the answer to the question will affect many

associated cases, or perhaps a whole class of USCIS customers.

vi. Discretionary Authority

Some benefits are dispensed through an exercise of discretion. Among such

cases, adjudicators will likely encounter both the easiest and most difficult cases

of their careers. I say that because the exercise of discretion involves the

subjective evaluation of evidence in order to find facts. Then one must weigh

those facts against laundry lists of factors which come from various sources.

The factors come from policy decisions from management and from numerous

administrative decisions. Courts can only have an influence by declaring that a

particular case decision was arbitrary, capricious, and an abuse of discretion. As

for the factors on those lists, a court can quash a prejudicial or invidious factor.

vii. Benefit Specific Procedures

As alluded above, there are some very specific procedures that do not apply

universally. Unfortunately, generalized regulations can be, and have been

inappropriately applied to a particular case or class of cases. There are different

standards of proof depending on the benefit (or relief) sought. This is so

because certain statutes contain specific standards but most do not. It has been

accepted via Precedent Decisions that, unless stated otherwise, the applicable

standard of proof is by a preponderance of the evidence. The general

regulations need to include disclaimers or warnings of the fact that there

might be benefit specific regulations which take precedence over them. Benefit

specific regulations derive from statutory language or precedent decisions.

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VI. Conclusion.

AAO has its work cut out for it but the task is doable. There are other administrative

agencies that have adjudicatory functions including appellate review. There are samples

of regulatory schemes that work and some that are lacking. Actually, if you look long

and hard enough, fault can be found with anything. The point is to copy the best and

forget the rest.

One last thing I want to point out is how much AAO has changed. If you look back

to FN 10, which repeats Dors FN 9, it is evident that this administrative body is much

bigger than what existed in 1989, and so is the BIA. In 1989, AAU consisted of five

appellate examiners and a Chief. More recently, AAO has a Chief and Deputy, and

according to a summary from a stakeholder engagement21dated February 2, 2011, .

is divided into nine branches seven subject matter branches, one fraud branch,

and one management support branch. Currently, the AAO has 88 employees, 59 of

whom are adjudications officers. The AAO staff includes adjudicators with extensive

experience at USCIS and/or the Immigration and Naturalization Service (INS) and 66

attorneys. Generally, AAO adjudications officers specialize in a particular type of

case, but the AAO moves officers between branches and retrains, as necessary. The

AAO will be adding a number of new positions in Fiscal Year 2011

Dated this 3rd day of January, 2016.

/s/Joseph P. Whalen

21http://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pag

es/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdf

http://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pages/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pages/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Outreach/Public%20Engagement/National%20Engagement%20Pages/2010%20Events/October%202010/AAO%20Stakeholder%20Engagement_Executive%20Summary.pdf

2016-01-03T17:27:32-0500Joseph P. Whalen

News & Politics

Advance COMMENTS ON NPRM ON REQUIREMENTS FOR FILING MOTIONS AND ADMINISTRATIVE APPEALS