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  • Article: Mischaracterizations of Evidence, Hyperbolic Rhetoric, Total Fabrications, and Unsupported or Conslusory Assertions of Counsel by Joseph Whalen

    Mischaracterizations of Evidence, Hyperbolic Rhetoric, Total Fabrications, and Unsupported or Conslusory Assertions of Counsel

    by Joseph Whalen

    How often have you seen the following quotes and citations? I do not feel that I need to do more than point out these increasingly frequent citations but if you cannot figure out the message, then jump to the end of this article when confused.

    …However, the unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984)[1]; Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980)[2]

    Moreover, the AAO declines to expand the beneficiary's work of setting up the petitioner and establishing his family in the United States as work on behalf of the foreign entity. The record and this premise are not substantiated in the record by supporting evidence. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).

    Above from: NOV232005_25B4203.pdf at p.3

    Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972) held:

    Since the burden of proof to establish eligibility for the benefits sought rests with petitioner, who seeks to accord beneficiaries classification as trainees under section 101(a)(15)(H)(iii) of the Immigration and Nationality Act, as amended, the contention that petitioner need only go on record as stating that training is not available outside the United States is rejected; likewise rejected is the contention that petitioner may rely solely upon his statement "on record" that beneficiaries will not displace U.S. workers, particularly when such statement is contradicted by other evidence of record. Accordingly, the petition is denied for failure of petitioner to submit an adequate training program, for failure to establish why the alleged training could not he obtained in beneficiaries' country, and because productive employment is involved which would displace United States workers.

    More frequently we are finding AAO characterizing some of the "overly zealous" unsupported assertions a bit more bluntly. Here are examples:

    Counsel's baseless and hyperbolic claim that denial of the petition may lead to widespread violence adds nothing to counsel's legal argument.

    Above from: Mar252011_01C1101.pdf at p.7

    ...repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990).

    Above from: JAN092013_02B2203.pdf at p. 8

    On appeal, counsel requests that the AAO "re-review" the same evidence the director considered and submits the petitioner's self-serving 48-page essay-style curriculum vitae. This appellate submission mostly reiterates points the director already considered and fails to expressly address the director's concerns. Nevertheless, the submission appears to minimally allege errors in the director's decision such that we will not summarily dismiss the appeal pursuant to 8 C.F.R. 5 103.3(a)(l)(v). For the reasons discussed below, we find that the record contains voluminous documentation that is mostly frivolous and fails to support the hyperbolic statements by counsel, the petitioner and the petitioner's references. Ultimately, while the petitioner was qualified to work on a nationally significant project as of the date of filing, on that date he had yet to publish a single article and the record contains no evidence that his presentations, most of which were poster presentations, had garnered any attention in the field.

    Above from: Apr012011_01B5203.pdf at p. 2

    Please, stop the slop in immigration case filings!

    That's my two-cents, for now.


    1 ] Respondent contends that the case is moot. Brief for Respondent 1-6. She asserts that since her return from Thailand in April 1974, she has been physically present in the United States for a continuous period of more than seven years. Accordingly, respondent claims that even if the Court were to reverse she could obtain suspension of deportation. Respondent's mootness argument is without merit. Although respondent has filed a motion with BIA asking that her deportation proceeding be reopened, granting of the motion is entirely within BIA's discretion. See 8 CFR 3.2 (1983); INS v. Jong Ha Wang, 450 U.S. 139, 143 -144, and n. 5 (1981). Moreover, even if BIA does reopen the proceeding, there is no basis in the present record for concluding that BIA will determine that respondent is eligible for suspension of deportation. Counsel's unsupported assertions in respondent's brief do not establish that respondent could satisfy the "continuous physical presence" requirement. In short, we have no basis for concluding that the case is or will become moot.

    2 Held, in part: (4) Counsel's comments in support of a motion to suppress are not evidence.


    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.
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