The DHS Semiannual Agenda Once Again Lists the Long Term Action of Revising USCIS-AAO Regs Concerning the Filing of Motions and Appeals

by Joseph P. Whalen


Department of Homeland Security (DHS) United States Citizenship and Immigration Services(USCIS) Administrative Appeals Office (AAO) And Immigrant Investor Program Office (IPO) Washington, DC

 

Petition to Amend a Rule per 5 USC § 553(e) and 6 CFR § Part 3

 

 Requirements for Filing Motions nd Administrative Appeals

                       

                                                                                          Dated this 8th day of August 2022.

I. INTRODUCTION-NATURE OF THIS FILING

This filing is a “Petition for Rulemaking” to Amend a Rule Pursuant to 5 USC § 553(e) which states:

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

This Petition for Rulemaking is specifically addressing a clear need for clarification in certain processes and procedures considering statutory changes made subsequent to the last substantive rulemaking on this subject matter. Additionally, USCIS through an AAO Decision that was adopted as agency-wide policy has further reinterpreted a portion of the rule in question on the threshold issue of standing to file a Motion or Appeal of an employment-based immigrant petition.

II. BACKGROUND

The long overdue revisions to the regulations governing USCIS’ Administrative Appeals and Motions are once again on the regulatory agenda. Maybe I should say they are still on the agenda because they have been on again, off again, for more than ten (10) years with little to no progress.  The Department of Homeland Security submitted its semiannual regulatory agenda to the Federal Register on August 5, 2022. There were two listings for U.S. Citizenship and Immigration Service. One is a Long-Term Action entitled: Requirements for Filing Motions and Administrative Appeals, it is identified by Regulation Identifier No. (RIN) 1615-AB98.  The other item is the fee rule which is required every two years.

III. STATUTORY AUTHORITY

The Immigration and Nationality Act (INA) is found in the United States Code, Title 8 Aliens and Nationality, Chapter 12 Immigration and Nationality. In general terms, the Secretary, like all heads of executive departments, has the authority to promulgate regulations. This is done by underlings under delegated authority. Certain provisions include language mandating no judicial review under any circumstances except “constitutional claims” or “questions of law”.

Still other statutes expressly provide for Administrative Appellate Review, sometimes it is mandatory and sometimes it is optional. Certain statutes mandate Administrative Appellate Review must be exhausted before seeking judicial review. Generally, Motions are available because they do not require submission to a higher authority but rather to the same authority who rendered the last decision. Appeals must go to a higher authority. In the immigration context sometimes a denied “request for a benefit” changes jurisdiction from one department (DHS) to another (DOJ).[1]  

Within DHS, there are also CBP and ICE[2] either of which might seek to have an alien removed by docketing a case in Immigration Court and issuing a Notice to Appear (NTA). If a case requesting a benefit is denied by USCIS, it might sometimes be renewed as a request for relief before an Immigration Judge in Immigration Court. USCIS handles initial requests for asylum, applications for adjustment of status, or petitions to remove conditions from status which are the prime sources of USCIS-issued NTAs. An Immigration Judge might deny relief and issue an Order of Removal which is then appealable to the Board of Immigration Appeals (BIA or Board).  

The BIA has its own immigration regulations apart from USCIS and AAO. This missive pertains principally to the long overdue rule update to come from USCIS’ AAO. This can be done under the broad, general rulemaking authority but also needs to account for specific provisions relating to certain benefit request denials, revocations, and newly created fine and sanction authority as well as new statutorily imposed exhaustion requirements for some. To begin, let’s look at the various statutory provisions and then the existing regulations on topic.

A. General Rulemaking Authority.

The Secretary or delegee may promulgate regulations to account for very explicit directives that Congress has included in the authorizing statute. However,

8 USC §1103. Powers and duties of the Secretary, the Under Secretary, and the Attorney General (INA § 103)

(a) Secretary of Homeland Security

(1) The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

(2) He shall have control, direction, and supervision of all employees and of all the files and records of the Service [CBP, ICE, USCIS etc…].

(3) He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.  ……..

 

           5 USC §553. Rule making. [5 USC = Administrative Procedures Act (APA)]

(a) This section applies, according to the provisions thereof, except to the extent that there is involved-

(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include-

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply-

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except-

(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause found and published with the rule.

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383 .)

556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

(a) This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.

(b) There shall preside at the taking of evidence-

(1) the agency;

(2) one or more members of the body which comprises the agency; or

(3) one or more administrative law judges appointed under section 3105 of this title.

This subchapter does not supersede the conduct of specified classes of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute. The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.

(c) Subject to published rules of the agency and within its powers, employees presiding at hearings may-

(1) administer oaths and affirmations;

(2) issue subpenas authorized by law;

(3) rule on offers of proof and receive relevant evidence;

(4) take depositions or have depositions taken when the ends of justice would be served;

(5) regulate the course of the hearing;

(6) hold conferences for the settlement or simplification of the issues by consent of the parties or by the use of alternative means of dispute resolution as provided in subchapter IV of this chapter;

(7) inform the parties as to the availability of one or more alternative means of dispute resolution, and encourage use of such methods;

(8) require the attendance at any conference held pursuant to paragraph (6) of at least one representative of each party who has authority to negotiate concerning resolution of issues in controversy;

(9) dispose of procedural requests or similar matters;

(10) make or recommend decisions in accordance with section 557 of this title; and

(11) take other action authorized by agency rule consistent with this subchapter.

(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. The agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

(e) The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title and, on payment of lawfully prescribed costs, shall be made available to the parties. When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.

( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 386 Pub. L. 94–409, §4(c), Sept. 13, 1976, 90 Stat. 1247 Pub. L. 95–251, §2(a)(1), Mar. 27, 1978, 92 Stat. 183 Pub. L. 101–552, §4(a), Nov. 15, 1990, 104 Stat. 2737 .)

5 USC §557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record

(a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title.

(b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hearings pursuant to section 556 of this title, shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. 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. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title shall first recommend a decision, except that in rule making or determining applications for initial licenses-

(1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or

(2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires.

(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions-

(1) proposed findings and conclusions; or

(2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and

(3) supporting reasons for the exceptions or proposed findings or conclusions.

The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of-

(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and

(B) the appropriate rule, order, sanction, relief, or denial thereof.


(d)(1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law-

(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;

(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;

(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:

(i) all such written communications;

(ii) memoranda stating the substance of all such oral communications; and

(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph;

(D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and

(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.

(2) This subsection does not constitute authority to withhold information from Congress.

( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 387 Pub. L. 94–409, § 4(a), Sept. 13, 1976, 90 Stat. 1246 .)

B. Specific Statutory Authority.

8 USC §1153. Allocation of immigrant visas

(b) Preference allocation for employment-based immigrants

Aliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows: …

(5) Employment creation …

(P) Administrative appellate review

(i) In general

The Director of U.S. Citizenship and Immigration Services shall provide an opportunity for an administrative appellate review by the Administrative Appeals Office of U.S. Citizenship and Immigration Services of any determination made under this paragraph, including-

(I) an application for regional center designation or regional center amendment;

(II) an application for approval of a business plan filed under subparagraph (F);

(III) a petition by an alien investor for status as an immigrant under this paragraph;

(IV) the termination or suspension of any benefit accorded under this paragraph; and

(V) any sanction imposed by the Secretary under this paragraph.

(ii) Judicial review

Subject to subparagraph (N)(v) and section 1252(a)(2) of this title, and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a determination under this paragraph until the regional center, its associated entities, or the alien investor has exhausted all administrative appeals.

(N) Threats to the national interest

(v) Judicial review

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a denial or revocation under this subparagraph. Nothing in this clause may be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with section 1252 of this title.

            8 USC § 1252 Judicial review of orders of removal

(a) Applicable provisions

***********

            (2) Matters not subject to judicial review

      ***********

                        (B) Denials of discretionary relief

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

************

(5) Exclusive means of review

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e). For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms "judicial review" and "jurisdiction to review" include habeas corpus review pursuant to section 2241 of title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).

***********

Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act or A W A), Pub. L. 109-248, 120 Stat. 587.

Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks jurisdiction to review a “no risk” determination by the United States Citizenship and Immigration Services, including the appropriate standard of proof to be applied.

Matter of W-R-, ID# 15216 (AAO Feb. 16, 2016) [Non-Precedent] states in pertinent part:

“…[T]he ability to file a petition is limited by section 204(a)(l)(A)(viii) of the Act, 8 U.S.C. § 1154(a)(l)(A)(viii), which states, in pertinent part:

(I) Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition ... is filed.”

Id. at pp. 1-2 This is the single issue dealing with a relative petition that is within AAO’s sole jurisdiction. Since AAO is within USCIS it is still exercising the Secretary’s discretion.

“The Director indicated that the petition would be denied unless the Petitioner submitted evidence that he was not convicted of a "specified offense against a minor," as defined in section 111(7) of the Adam Walsh Act, or established beyond any reasonable doubt that he poses no risk to the Beneficiary of the visa petition. The Director provided the Petitioner with a detailed list of acceptable evidence.”

Id. at. p.3 Due to the horrendous nature of the specified offense contemplated by the AWA, petitioners for alien relatives must meet this higher standard of proof that they are “no risk” to the beneficiary.

IV. EXISTING REGULATIONS

8 CFR § 103.3 Denials, appeals, and precedent decisions.

(a) Denials and appeals -

(1) General -

(i) Denial of application or petition. When a Service officer denies an application or petition filed under § 103.2 of this part, the officer shall explain in writing the specific reasons for denial. If Form I-292 (a denial form including notification of the right of appeal) is used to notify the applicant or petitioner, the duplicate of Form I-292 constitutes the denial order.

(ii) Appealable decisions. Certain unfavorable decisions on applications, petitions, and other types of cases may be appealed. Decisions under the appellate jurisdiction of the Board of Immigration Appeals (Board) are listed in § 3.1(b) of this chapter. Decisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in § 103.1(f)(2) of this part.

(iii) Appeal -

(A) Jurisdiction. When an unfavorable decision may be appealed, the official making the decision shall state the appellate jurisdiction and shall furnish the appropriate appeal form.

(B) Meaning of affected party. For purposes of this section and §§ 103.4 and 103.5 of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition. An affected party may be represented by an attorney or representative in accordance with part 292 of this chapter.

(C) Record of proceeding. An appeal and any cross-appeal or briefs become part of the record of proceeding.

(D) Appeal filed by Service officer in case within jurisdiction of Board. If an appeal is filed by a Service officer, a copy must be served on the affected party.

(iv) Function of Administrative Appeals Unit (AAU). The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations.

(v) Summary dismissal. An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. The filing by an attorney or representative accredited under 8 CFR 292.2(d) of an appeal which is summarily dismissed under this section may constitute frivolous behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under § 103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary action against attorneys or representatives provided in 8 CFR 292.2 or in any other statute or regulation.

(2) AAU appeals in other than special agricultural worker and legalization cases -

(i) Filing appeal. The affected party must submit an appeal on Form I-290B. Except as otherwise provided in this chapter, the affected party must pay the fee required by 8 CFR 106.2. The affected party must submit the complete appeal including any supporting brief as indicated in the applicable form instructions within 30 days after service of the decision.

(ii) Reviewing official. The official who made the unfavorable decision being appealed shall review the appeal unless the affected party moves to a new jurisdiction. In that instance, the official who has jurisdiction over such a proceeding in that geographic location shall review it.

(iii) Favorable action instead of forwarding appeal to AAU. The reviewing official shall decide whether or not favorable action is warranted. Within 45 days of receipt of the appeal, the reviewing official may treat the appeal as a motion to reopen or reconsider and take favorable action. However, that official is not precluded from reopening a proceeding or reconsidering a decision on his or her own motion under § 103.5(a)(5)(i) of this part in order to make a new decision favorable to the affected party after 45 days of receipt of the appeal.

(iv) Forwarding appeal to AAU. If the reviewing official will not be taking favorable action or decides favorable action is not warranted, that official shall promptly forward the appeal and the related record of proceeding to the AAU in Washington, DC.

(v) Improperly filed appeal -

(A) Appeal filed by person or entity not entitled to file it -

(1) Rejection without refund of filing fee. An appeal filed by a person or entity not entitled to file it must be rejected as improperly filed. In such a case, any filing fee the Service has accepted will not be refunded.

(2) Appeal by attorney or representative without proper Form G-28 -

(i) General. If an appeal is filed by an attorney or representative without a properly executed Notice of Entry of Appearance as Attorney or Representative (Form G-28) entitling that person to file the appeal, the appeal is considered improperly filed. In such a case, any filing fee the Service has accepted will not be refunded regardless of the action taken.

(ii) When favorable action warranted. If the reviewing official decides favorable action is warranted with respect to an otherwise properly filed appeal, that official shall ask the attorney or representative to submit Form G-28 to the official's office within 15 days of the request. If Form G-28 is not submitted within the time allowed, the official may, on his or her own motion, under § 103.5(a)(5)(i) of this part, make a new decision favorable to the affected party without notifying the attorney or representative.

(iii) When favorable action not warranted. If the reviewing official decides favorable action is not warranted with respect to an otherwise properly filed appeal, that official shall ask the attorney or representative to submit Form G-28 directly to the AAU. The official shall also forward the appeal and the relating record of proceeding to the AAU. The appeal may be considered properly filed as of its original filing date if the attorney or representative submits a properly executed Form G-28 entitling that person to file the appeal.

(B) Untimely appeal -

(1) Rejection without refund of filing fee. An appeal which is not filed within the time allowed must be rejected as improperly filed. In such a case, any filing fee the Service has accepted will not be refunded.

(2) Untimely appeal treated as motion. If an untimely appeal meets the requirements of a motion to reopen as described in § 103.5(a)(2) of this part or a motion to reconsider as described in § 103.5(a)(3) of this part, the appeal must be treated as a motion, and a decision must be made on the merits of the case.

(vi) Brief. The affected party may submit a brief with Form I-290B.

(vii) Additional time to submit a brief. The affected party may make a written request to the AAU for additional time to submit a brief. The AAU may, for good cause shown, allow the affected party additional time to submit one.

(viii) Where to submit supporting brief if additional time is granted. If the AAU grants additional time, the affected party shall submit the brief directly to the AAU.

(ix) Withdrawal of appeal. The affected party may withdraw the appeal, in writing, before a decision is made.

(x) Decision on appeal. The decision must be in writing. A copy of the decision must be served on the affected party and the attorney or representative of record, if any.

V. NECESSARY CHANGES

The first order of business is the wholesale correction of the name of USCIS’ Appellate Body for USCIS from Administrative Appeals Unit (AAU) to Administrative Appeals Office (AAO). Next, the reference to Service or the Service need to be changed to USCIS. Subclause (ii) Appealable decisions, contains outdated information as to the citations for the BIA and AAO jurisdictions.  The BIA authority is now in chapter V while AAO authority is primarily found in a since repealed paragraph in this chapter last valid in 2003. It needs to be restored but with new additions.

The first reference to the Associate Commissioner, Examinations needs to be changed to the Secretary and thereafter to the Chief of the Administrative Appeals Office. Additional references need only be changed to read Chief of AAO.

Also, while most employment-based petitions are adjudicated at a Service Center headed by a Director, EB-5 cases are adjudicated at the Immigrant Investor Program Office (IPO) which is also headed by a Chief just like AAO, namely the Chief of IPO. The same naming conventions should be employed, as applicable.  EB-5 is the Immigrant Investment Program, and the potential appellants may be legal entities or natural persons. These potential appellants include anyone who may receive an adverse determination under INA §203(b)(5).

These encompass anyone or any entity seeking a benefit who has been denied that benefit. EB-5 legislation also allows for sanctions which include any benefit being revoked, suspended, cancelled or withdrawn by USCIS. Additionally, EB-5 allows for certain more severe punitive measures. They include fines, and temporary or permanent debarment of a new commercial enterprise (NCE) or job creating entity (JCE), which means no further participation in the EB-5 program. Debarment has the same chilling effect as does termination of designation as a Regional Center or revocation of a license to operate as, or registration as, a promoter of the EB-5 program.  In fact, any person can be debarred from the program for breaking their rules especially if they involved: national security, public safety, criminality or malfeasance, such as fraud or misrepresentation but also, simple business failures can lose one’s designation as a regional center or recognition as a JCE or NCE. Finally, the alien investor’s conditional status may be terminated rather than lifted upon petition. Previously, such situation would have either been certified for review or an NTA would have been issued and the alien investor and family would have been placed in Removal Proceedings. It was and remains an ugly proposition.

All of the above adverse determinations are now subject to administrative appellate review and all of these participants must exhaust their administrative appeal rights before seeking any form of judicial review in a circuit court of appeals, if that is an option.  Purely discretionary decisions are not subject to judicial review as per INA 242 [8 USC 1252], but constitutional claims or pure questions of law are reviewable. 

VI. AFFECTED PARTY

The definition of affected party needs to add in the exceptions noted above. Namely, the citizen or LPR petitioner in an Adam Walsh Act determination as to their failure to demonstrate that they pose “no risk” to the beneficiary of a family-based petition has recourse only to AAO to review that otherwise sole and unreviewable exercise of the Secretary’s discretion. The I-140 beneficiary who is also an adjustment applicant who qualifies to port to a new employment situation and has requested to do so or has already done so under INA 204(j) [AC21 portability provision]. That last reinterpretation was accomplished when USCIS adopted a particular AAO decision as agencywide policy, see Matter of V-S-G- Inc. (PDF, 363.71 KB), Adopted Decision 2017-06 (AAO Nov. 11, 2017). AAO still helps out ICE in reviewing bond breaches as well. Finally, ALL participants involved in the EB-5 Immigrant Investment Program have recourse to file Motions to IPO or Appeal to AAO and must exhaust administrative review before seeking judicial review in a Circuit Court of Appeals.

Submitted to:

U.S. Department of Homeland Security,

Office of the General Counsel, Mail Stop 0485,

Attn: Regulatory Affairs Law Division,

245 Murray Lane SW.,

Washington, DC 20528-0485.

 

[1] DOJ = Department of Justice under the Attorney General (A.G.).

[2] CBP = Customs and Border Protection, ICE – Immigration and Customs Enforcfement.


About The Author


Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.