Adjudicating Benefit Requests And Practicing Administrative Law In an Inquisitorial System


May 16, 2014

The concept of justice in America is, to say the least, confused in the minds of the American public. Popular stories dating from literary works, through stage, the big screen, TV, computers, and now even in handheld devices, has given rise to some peculiar notions. Sherlock Holmes, Perry Mason, Dragnet, and Law and Order to name a few, have focused on investigations and the criminal justice system with its “innocent until proven guilty” approach with a heavy burden of proof on the government prosecutors to prove that guilt “beyond a reasonable doubt”. That type of proceeding is adversarial in nature, in short, a dogfight, usually NOT to the death BUT that can be the outcome.

Inapposite to the adversarial system is the inquisitorial system. Stemming from our earliest civilizations the “wise ones among us” have sought the truth. Please think about the inquisiting magistrates of the English common-law based systems still thriving today in many nations. Even in U.S. Courts, we have Magistrates who act as case managers and fact-finders for the District Court Judges. Our Magistrates, working within an arm of our adversarial system, are primarily seeking the truth in an inquisitorial manner just like Administrative Branch Adjudicators do. These individuals delve deeply into the underlying facts and factors in the case in order to make recommendations to the District Court Judges who will ultimately preside over and rule upon a case at bar.

The inquisiting Magistrate is an excellent role model for Administrative Branch Adjudicators to emulate. USCIS employs such Adjudicators to make decisions on immigration, naturalization, citizenship and related claims for the multitude of applications and petitions filed each year, which number in the millions annually. Practitioners filing such forms with USCIS would do their clients and themselves a big favor to accept the reality of the system in which they work.

The only exception to the above is in the beginning stages of a Removal Proceeding before an Immigration Judge (IJ) within EOIR where the burden of proof starts out upon the shoulders of the government. However, once the simple facts, of (1.) alienage, and (2.) inadmissibility or deportability, collectively, removability, are proven, then the alien respondent usually seeks some form of relief and the burden shifts to them to prove eligibility. Once again, the practitioner will find him or herself in an inquisitorial system when seeking any kind of relief, amelioration, or in other words, a benefit under immigration, nationality or related law. In essence most Removal Proceedings morph into benefit requests. If an IJ can kick something over to USCIS to handle then that is what usually happens.

The majority of cases in our inquisitorial immigration system are decided based upon the standard of proof known as the “preponderance of the evidence” standard. There are some notable exceptions such as naturalization, or proving the bona fides of a marriage, or other facts and factors here and there. You really have to refresh your memory on the statutes, regulations, precedents, and policies when delving into something out of the ordinary or out of your comfort zone. Before moving forward with this essay, we all need to be clear on exactly what “preponderance” means in connection with this standard of proof. Please remember that it is ultimately the preponderance of the believable, reasonable, rational, in short: credible facts that can be gleaned from the evidence presented that needs to be the focus of the adjudication as well as the case preparation and presentation. The evidence presented must be worthy of consideration and of high quality and most importantly, point to the truth. That means that it is the quality of the evidence that matters most. Quantity in relation to evidence under the preponderance standard should be measured in the number of facts that can be counted rather than number of pages presented. The facts, when applied to the rule (statute, regulation, or precedent) and agency policies, must allow for reasonable inferences leading to a proper conclusion. The old “kitchen sink” approach to selection and submission of evidence does nobody any good. That approach is very counterproductive. Burying an Adjudicator under a plethora of useless, pointless, worthless, evidence of nothing only prolongs processing times and draw suspicion which in turns slows things down even further. Some folks might try that approach in an effort to obfuscate because they know that the case is a dud and they are just biding their time. Far too often that is NOT the case. Far too often, the kitchen sink approach is used by unrepresented form filers or practitioners who are inexperienced or inept. Extraneous materials in the record and outrageous claims made in any benefit (or relief) request lead an IJ, or Adjudicators on behalf of their Director, or AAO to describe the evidence with terms such as hyperbolic, baseless, pointless, worthless, or worse such as misleading or plain old false.

To both the applicants/petitioners/counsel, as well as the adjudicators, with that entire discussion in mind, please ask yourself some questions. Please start with questions such as:

  • What facts do I need to prove to obtain the benefit (or relief) I want? OR What facts would support the request?
  • What documentary evidence will support findings of fact that will support the request?
  • Where can I get such documentary evidence? OR What might be a reliable source of evidence to allow to be presented?
    • Court clerks?
    • Census records?
    • Hospital records?
    • Other medical records?
    • Police reports?
    • County Clerks?
    • Vital statistics departments?
    • Motor Vehicle Departments?
    • Passports?
    • Bank statements?
    • Travel itineraries?
    • Credit card or other receipts?
    • Affidavits?
  • Should I obtain (or allow) the oral testimony of witnesses?
    • Who has firsthand knowledge?
      • Older family members or friends.
      • Younger family members or friends but only if they were present and were old enough to remember.
    • Who would likely or could only present hearsay?
      • Someone who only heard “stories”.
      • Someone who was not old enough to remember.
      • Someone who was not even born yet.
      • Someone who was not present.
    • Can I use (or allow) an Expert Witness on a topic? If yes, then who?
      • Medical Doctor?
      • Psychologist or Psychiatrist?
      • Social Worker?
      • Parole Officer?
      • DHS Officers?
      • Police Officers?
      • Sociologist?
      • Journalist?
      • Foreign diplomat?

    I think that that is enough for now. Be on the lookout (BOLO) for follow up articles on related topics. Such follow ups might include discussions of qualitative and quantitative analytical techniques and approaches; statistical methods; matters pertaining to an exercise of discretion, when allowed; or perhaps a tirade on the meaning of “sound judgment”. Please check back again soon and find out.

    That’s my two-cents, for now.

    Reprinted with permission.

    About The Author

    Joseph P. Whalen

    Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.
    1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218
    Phone: (716) 604-4233

    DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor.
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