By Joseph P. Whalen (September 3, 2013)

In a comment I wrote in June 2011, to AAO , I pointed out a paradigm shift that had taken place with the creation of DHS and especially USCIS.

..... In 2002, Congress passed the Homeland Security Act (HSA 2002) in response to the terrorist attacks of September 11, 2001. The Department of Homeland Security (DHS) was created. INS and many other agencies were combined and reorganized. DHS came into existence on March 1, 2003. INS ceased to exist and three new immigration agencies were established within DHS. EOIR remained in DOJ. AAO moved into DHS along with the rest of INS and landed in USCIS, the “benefits determination” agency.

ICE and CBP are the “law enforcement” immigration agencies. USCIS, CBP and ICE can all issue a Notice to Appear (NTA) in order to place an alien in Removal Proceedings.

The oddball situation of the existence of particularized appellate authority is only present in USCIS. The primary deciding officials can have their initial or primary decisions challenged to, reconsidered and/or reopened by, or reviewed on certification to the AAO. One type of ICE decision can be appealed to AAO, bond breaches. ICE decides its own initial SEVP/SEVIS school designation, withdrawals and appeals on those decisions, itself. One other type of decision can be appealed to FDNS within USCIS (S non-immigrant status determinations).

AAO is in a unique position as its reviews of certain denials or revocations, and/or appeals or motions or even certifications of them, may be dispositive of whether or not an NTA can be issued. In such a situation, this one appellate body may be in a position to order the issuance of an NTA, block issuance of an NTA, make a recommendation on the issuance an NTA, or wash their hands of expressing any opinion on that consideration altogether. This is a Policy Decision that USCIS should address in its AAO regulatory review.
In an AAO Non-Precedent Decision, MAR072013_01D8101.pdf, that I ran across today in the D8 category pertaining to non-immigrant petitions for Aliens of Extraordinary Ability or Achievement. In the instant case, the request was for an O-1 nonimmigrant visa, as an alien with extraordinary achievement in the motion picture or television industry. It was denied, appealed, and the appeal was dismissed. That is not terribly unusual, it happens all the time. AAO made a finding of material misrepresentation against the petitioner. That too, is not all that unusual, they catch folks in lies all the time. The part that struck me as out of the ordinary was the fact that AAO recommended to the Field Office Director that the beneficiary be issued an NTA.

Here is an excerpt from that O-1 Appeal Dismissal of March 7, 2013:

The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, the petitioner has not met that burden.

Finally, the AAO notes that the beneficiary's admission and continued stay in the United States is conditioned on the full and truthful disclosure of all information requested by USCIS in conjunction with this petition. The willful failure to provide truthful information constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C)(i) of the Act, 8 U.S.C. § 1227(a)(l)(C)(i).

While the AAO observes that it was the beneficiary's employer that technically provided the fraudulent documentation to USCIS, the director's denial of the petition and the dismissal of this appeal effectively terminate the beneficiary's lawful status in the United States. Accordingly, the AAO recommends that the director issue a Notice to Appear and commence proceedings to remove the beneficiary from the United States in accordance with section 239 of the Act, 8 U.S.C. § 1229.

ORDER: The appeal is dismissed.

FURTHER ORDER: The AAO finds that the petitioner knowingly
submitted documents containing false statements in an effort to mislead USCIS and the AAO on an element material to the beneficiary's eligibility for a benefit sought under the immigration laws of the United States.
This is something that I always believed that AAO could do but I am at a loss to know whether or not they have done this before. I was under the impression that AAO felt it, too, was bound by the first prong of the eight-prong holding in Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980), which bars the IJ and the BIA from revisiting the decision to institute Deportation (now Removal) Proceedings. When I wrote my comment in June 2011, I was really talking about the proper exercise of prosecutorial discretion, and who had what role in it. I see now that AAO truly understands that it is in a unique position which makes Ramirez inapplicable to it. If anyone out there knows of another example of AAO taking this step, please share it with me:

That’s my two-cents, for now.