Paper on Adopting and Affirming Decision Below

by Joseph P. Whalen


DEPARTMENT OF HOMELAND SECURITY (DHS)

UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES (USCIS)

OFFICE OF THE DIRECTOR

ADMINSTRATIVE APPEALS OFFICE (AAO)

OFFICE OF CHIEF COUNSEL (OCC)

WASHINGTON, DC

 

 OPINION PAPER

ON AFFIRMING AND ADOPTING THE DECISION BELOW

 

     Dated this 13th Day of September 2022

I. INTRODUCTION

      Contrary to the opinion of some, it is not necessary to reinvent the wheel every time a case is reviewed. The Courts of Appeal have a long history of accepting the findings and conclusions stated in the decision being appealed. Administrative bodies also do this but not for nearly as long. In In Re: 21035226 (SEP012022_01D2101.pdf) (H-lB)[1] the AAO includes the following discussion:

Upon consideration of the record-including the arguments made on appeal-we adopt and affirm the Director's ultimate determination as it relates to the regulatory criteria at 8 C.F.R. § 214.2(h)(4)(iii)(A)(1)-(4). See Matter of P. Singh, Attorney, 26 I&N Dec. 623, 624 (BIA 2015) ( citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994)); see also Chen v. INS, 87 F.3d 5, 7- 8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized attention to the case).

II. POWER TO ADOPT INITIAL DECISION from the COURTS

In Bing Feng Chen v. INS, 87 F.3d 5 (1st Cir. 1996), the court stated in pertinent part:

As a general proposition, if a reviewing tribunal decides that the facts and evaluative judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings--as long as its opinion or order clearly indicates that it gave individualized attention to the case and, upon reflection, elected to adopt the trier's words rather than to write anew. See Alaelua v. INS, 45 F.3d 1379, 1381 (9th Cir. 1995); Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir. 1993); cf. In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993) ("Where, as here, a trial court has produced a first-rate work product, a reviewing tribunal should hesitate to wax longiloquent simply to hear its own words resonate.").

These principles hold true in an administrative appeal of this genre. To be sure, the Board is obliged to weigh all the pertinent factors (both favorable and unfavorable), to exhibit due consideration for the universe of weighted factors when tallying the equities, to exercise independent judgment, and to state plainly its reasons for granting or denying relief. See Alaelua, 45 F.3d at 1382; Martinez v. INS, 970 F.2d 973, 974 (1st Cir. 1992). And, moreover, the Board's opinion must reflect that it has carried out these obligations--but the Board need not write a long essay merely to prove its mettle. Cf., e.g., Martinez, 970 F.2d at 976 (concluding that the Board need not "address specifically each claim the petitioner made or each piece of evidence the petitioner presented"). To use the vernacular, if the Board's view is that the IJ "got it right," the law does not demand that the Board go through the idle motions of dressing the IJ's findings in its own prose.2  In short, de novo review--and what the Board chooses to call "independent review" is neither more nor less than de novo review--does not require the Board to reinvent the wheel.

P. 7

III. POWER TO ADOPT INITIAL DECISION from the EXECUTIVE

In Matter of Burbano, 20 l&N Dec. 872 (BIA 1994) the Board includes the following discussion:

We state at the outset that when the Board engages in a review of a discretionary determination by an immigration judge, we rely upon our own independent judgment in deciding the ultimate disposition of the case. This is in accord with our mandate to "exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case." See 8 C.F.R. § 3.1(d)(1) (1994). The authority of the Board to issue a discretionary decision independent from that of the immigration judge has been recognized by the federal courts. See, e.g., Panrit v. INS, 19 F.3d 544 (10th Cir. 1994); Huaman-Cornelio v. BIA, 979 F.2d 995, 998-99 (4th Cir. 1992); Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992), cert. denied, 113 S. Ct. 1412 (1993); Charlesworth v. INS, 966 F.2d 1323, 1325 (9th Cir. 1992); Hazzard v. INS, 951 F.2d 435, 440 (1st Cir. 1991); Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir. 1991). Thus, we do not employ an abuse of discretion standard when reviewing discretionary determinations of immigration judges.

The advantage of an independent standard of review is that it promotes uniformity in the application of the various discretionary provisions of the Act. See Matter of Cerna, 20 I&N Dec. 399, 405 (BIA 1991) (noting that a principal mission of the Board of Immigration Appeals is to ensure as uniform an interpretation and application of the immigration laws as possible), aff'd, Cerna v. INS, 979 F.2d 212 (11th Cir. 1992). We note in this regard that the individualistic nature of a discretionary determination permits the possibility that differing decisions may be reached based on essentially identical facts, with each decision arguably falling within a reasonable exercise of discretion. If our review were limited to questioning whether the immigration judge abused his or her discretion, we would be unable to remedy such situations. However, by utilizing our own discretionary authority, there exists a forum available to promote uniformity of result.

Nevertheless, our independent review authority does not preclude the Board [or AAO] from adopting, or affirming a decision of the immigration judge [or adjudicating officer], in whole or in part, when we are in agreement with the reasoning and result of that decision. In this situation, the Board's final decision may be rendered in a summary fashion; however, such summary treatment of a case does not mean that we have conducted an abbreviated review of the record or have failed to exercise our own discretion. Rather, it is simply a statement that the Board's conclusions upon review of the record coincide with those which the immigration judge articulated in his or her decision.

Pp. 873-4

IV. CONTROLLING LEGAL AUTHORITY

The Secretary of Homeland Security and the agencies under the Secretary have not only the legal authority to create and issue precedents, but there is also a genuine need for them.  Without the right guidance in place, the work cannot be done consistently.

8 USC §1103. Powers and duties of the Secretary, the Under Secretary, and the Attorney General

(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.

(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.

*****

(June 27, 1952, ch. 477, title I, §103, 66 Stat. 173 Pub. L. 100–525, §9(c), Oct. 24, 1988, 102 Stat. 2619 Pub. L. 101–649, title I, §142, Nov. 29, 1990, 104 Stat. 5004 Pub. L. 104–208, div. C, title I, §§102(d), 125, 134(a), title III, §§308(d)(4)(C), (e)(4), 372, 373, Sept. 30, 1996, 110 Stat. 3009–555 3009-5623009-5643009-6183009-6203009-6463009-647Pub. L. 107–296, title XI, §1102, Nov. 25, 2002, 116 Stat. 2273 Pub. L. 108–7, div. L, §105(a)(1), (2), Feb. 20, 2003, 117 Stat. 531 Pub. L. 108–458, title V, §5505(a), Dec. 17, 2004, 118 Stat. 3741 Pub. L. 111–122, §2(a), Dec. 22, 2009, 123 Stat. 3480 .)

8 CFR § 2.1 Authority of the Secretary of Homeland Security.

All authorities and functions of the Department of Homeland Security to administer and enforce the immigration laws are vested in the Secretary of Homeland Security. The Secretary of Homeland Security may, in the Secretary's discretion, delegate any such authority or function to any official, officer, or employee of the Department of Homeland Security, including delegation through successive redelegation, or to any employee of the United States to the extent authorized by law. Such delegation may be made by regulation, directive, memorandum, or other means as deemed appropriate by the Secretary in the exercise of the Secretary's discretion. A delegation of authority or function may in the Secretary's discretion be published in the Federal Register, but such publication is not required.

[68 FR 10923, Mar. 6, 2003]

8 CFR § 103.10 Precedent decisions.

(a) Proceedings before the immigration judges, the Board of Immigration Appeals and the Attorney General are governed by part 1003 of 8 CFR chapter V.

(b) Decisions as precedents. Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States. By majority vote of the permanent Board members, selected decisions of the Board rendered by a three-member panel or by the Board en banc may be designated to serve as precedents in all proceedings involving the same issue or issues. Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretary of Homeland Security to the extent authorized in paragraph (i) of this section, shall serve as precedents in all proceedings involving the same issue or issues.

(c) Referral of cases to the Attorney General.

(1) The Board shall refer to the Attorney General for review of its decision all cases which:

(i) The Attorney General directs the Board to refer to him.

(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review.

(iii) The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, refers to the Attorney General for review.

(2) In any case the Attorney General decides, the Attorney General's decision shall be stated in writing and shall be transmitted to the Board or Secretary, as appropriate, for transmittal and service as provided in paragraph (c) of this section or 8 CFR 1003.1(h)(2).

(d) Publication of Secretary's precedent decisions. The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General Service precedent decisions as set forth in § 103.3(c).

(e) Precedent decisions. Bound volumes of designated precedent decisions, entitled “Administrative Decisions under Immigration and Nationality Laws of the United States,” may be purchased from the Superintendent of Documents, U.S. Government Printing Office. Prior to publication in volume form, current precedent decisions are available from the Department of Justice, Executive Office for Immigration Review's Virtual Law Library at: http://www.justice.gov/eoir/vll/libindex.html.

(f) [Reserved]

[68 FR 9832, Feb. 28, 2003. Redesignated and amended at 76 FR 53781, Aug. 29, 2011]

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

(c.)  Service precedent decisions. The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General decisions relating to the administration of the immigration laws of the United States for publication as precedent in future proceedings, and upon approval of the Attorney General as to the lawfulness of such decision, the Director of the Executive Office for Immigration Review shall cause such decisions to be published in the same manner as decisions of the Board and the Attorney General. In addition to Attorney General and Board decisions referred to in § 1003.1(g) of chapter V, designated Service decisions are to serve as precedents in all proceedings involving the same issue(s). Except as these decisions may be modified or overruled by later precedent decisions, they are binding on all Service employees in the administration of the Act. Precedent decisions must be published and made available to the public as described in 8 CFR 103.10(e).

[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55 FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, Feb. 28, 2003; 76 FR 53781, Aug. 29, 2011; 85 FR 46914, Aug. 3, 2020]

V. SUBJECT MATTER BACKGROUND

The absolute basics of an appeal is to get a second opinion from a higher authority. That higher authority may come at their review from a more than one direction. Some cases are reviewed on the interpretation and application of law. On certain occasions, the appellate authority determines that the underlying filing for the immigration benefit was not required in the first place. These include an unnecessary waiver of inadmissibility because the applicant was not inadmissible. That happens far too often for my liking. Some cases are reviewed only for clear error as to findings of fact and conclusions of law. Others are examined more deeply for an abuse of discretion or poor exercise of judgement. Still others are reviewed full de novo with new factfinding and conclusions of law. This last variety is of particular interest when the framework for adjudication is based upon some test or approach set by precedent.

VI. ADOPTING THE DECISION CAN FALL FLAT

The courts that have reviewed the practice of an administrative appellate body adopting a decision have added provisos.  They have warned against rubber-stamping decisions. They have stated that there must be enough in the adopted decision to indicate that the findings were thoroughly reviewed but at the same time have relieved the administrative body from having to regurgitate the same review process and its own independent findings and conclusions if they would merely be repetitive. Nonprecedential AAO decisions of this type are rather useless for study purposes because they lack specificity.

In the old days, when the former INS and the BIA disagreed and brought a case to the A.G. to decide, they frequently used to include all three decisions in the final I&N Decision. I have never seen the Director’s decision posted along with the AAO decision and the BIA stopped doing so many decades ago. Nowadays, one can usually only see the decision below form the IJ or USCIS when a challenge has been filed in the U.S. District Court or Court of Appeals and pays to access it through PACER.  I’d like to see a return to including a copy of the decision being adopted posted with the appellate decision, at least for adopted or precedents, but also significant non-precedents.

VII. MORE RECENT AAO NONPRECEDENTS

In Re: 19976150 (JUL192022_01B9204.pdf)[2] (I-360 VAWA);

In Re: 21383440 (JUN082022_01A6245.pdf)[3] (I-485, U-Nonimmigrant);

The Director determined that the Petitioner demonstrated the proposed endeavor's substantial merit but not its national importance. In his decision, the Director thoroughly discussed the Petitioner's claims and documentation and correctly concluded that they did not meet the national importance requirement of Dhanasar's first prong. Upon consideration of the entire record, including the arguments made on appeal, we adopt and affirm the Director's decision relating to Dhanasar's first prong determination with the comments below. See Matter of P. Singh, Attorney, 26 I&N Dec. 623 (BIA 2015) (citing Matter of Burbano, 20 I&N Dec. 872,874 (BIA 1994)); see also Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[I]f a reviewing tribunal decides that the facts and evaluative judgments prescinding from them have been adequately confronted and correctly resolved by a trial judge or hearing officer, then the tribunal is free simply to adopt those findings" provided the tribunal's order reflects individualized attention to the case).

Id. at pp. 2-3.  AAO need only add to a synopsis of what was decided in the decision below and only when necessary. A brief synopsis should suffice.

VIII. CIRRICULUM VITAE & STATEMENT OF INTEREST

I am a former INS/USCIS Adjudications Officer. I joined INS in 1998, after previous federal service as an archaeologist with the U.S. Forest Service. Between the two, I learned how to navigate complex statutes and their complex implementing regulations. I began my adjudications career at a sensitive time when INS was just getting over the CUSA fiasco at the end of the Clinton administration. NQP was new and I couldn’t touch an A-File as an adjudicator until I got NQP training.

As a result of the situation, I spent an extra-long time reading the INA and 8 CFR, observing others in naturalization interviews, and performing all manner of clerical tasks. When I did start adjudicating, I got very good, very fast. I became a trainer, started an in-house law library of administrative and ninth circuit cases, became the “go-to guy” for my office.

I pioneered the position of Community Based Organization Liaison Officer (the forerunner of today’s Public Engagement and Community Relations Officers etc...) and instituted INS’ first e-mail inquiry account. I liaised with other offices, community groups, AILA, other agencies, Congressional Office staffers, and even the Law Library of the Library of Congress (I got them to put together international law resources, beginning with legitimation laws from around the world). I became an acting SDAO and then was selected as an SDAO. I occasionally filed in for the Director of my office.

I went through the San Francisco Bay Area’s Federal Executive Board’s Executive Development Program, I transitioned into being a trainer on many topics. I included in my training materials the non-precedent that would become Matter of Chawathe before it was adopted in January 2006, and before it became Precedent in October 2010. I instigated INS’ first customer service training by suggesting it to then-commissioner Doris Meissner on an inspection to the office where I began. It was a customer service pilot office which is why she visited it. I did a lot of outreaches; from pioneering naturalization workshops with mock interviews, to staffing information booths at ethnic events and even did some recruiting at county fairs.  I officiated at Naturalization Ceremonies and Citizenship Celebrations/Ceremonies (for N-600 cases). I authored numerous RFE and denial templates. I became an Adjudications Analyst at a Service Center as well as the Center NQP Trainer. I critiqued CLAIMS 4 as it was being introduced and pointed out many needed changes. I went to HQ on a variety of details and did beta testing of various computer program updates. They trusted me to figure out how to break it so they could fix it before it was deployed.

When I became a senior adjudications officer (Subject Matter Expert) at HQ in SCOPS, at one point I was the sole Regional Center Adjudicator. I created the Immigrant Investor e-mail and later, wrote unofficial “How to Apply” instructions that 1.) were spammed out on the internet and grew the EB-5 program exponentially, and 2.) later formed the basis for the Form I-924 instructions. My efforts saw the number of active and approved Regional Centers grow from 11 approved but only 6 active, to approximately 80 with another 100 or so in the processing queue. That was when USCIS, after 17 years, finally decided to create a form and charge a fee. I wrote a Policy Memo for EB-5 about construction jobs and was listed as POC for program filing changes in the Federal Register. I suggested the initial I-924 filing fee be $12,500 but the agency began it at approximately $6,300 instead. Today, filing for Regional Center Designation costs $17,795 and will soon implement up to $20,000 annual participation/recertification fee per Regional Center. IPO was not yet created when I left the agency the first time after everything EB-5 was centralized at CSC. I trained the first batch of RC adjudicators. Several years later I returned to the newly opened Potomac Service Center and became a valuable resource for mentoring and training sessions. I worked on some of the most difficult cases in the office.

During my first break in employment from USCIS, I consulted as a freelance paralegal—no license was required in NY State which is where I was at the time. I have been published in Immigration Daily (an online immigration publication) nearly 300 times since March of 2011 through the present, only taking time off when I returned to USCIS employment.  I responded to both of AAO’s formal Amicus Brief solicitations (in 2011 and 2015) and am glad that they adopted many of my suggestions. I’m probably missing something.

I developed a keen interest in immigration law while working for the government, and it remains with me. I was pleased by the recent change in EB-5 law and glad that many of the suggestions I’ve made over the years finally made it into the March 2022, EB-5 Reform and Integrity Act.

IX. CONCLUSION

It is my sincerest wish to provide useful and constructive criticism along with suggestions for improvements. I only desire to help the agency and its customers.

 

[1] Found at: https://www.uscis.gov/sites/default/files/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20%28H-1B%29/Decisions_Issued_in_2022/SEP012022_01D2101.pdf

[2] Found at: https://www.uscis.gov/sites/default/files/err/B9%20-%20Battered%20Spouse%20or%20Child/Decisions_Issued_in_2022/JUL192022_01B9204.pdf

[3] Found at: https://www.uscis.gov/sites/default/files/err/A6%20-%20Adjustment%20of%20Alien%20in%20U%20Nonimmigrant%20Status%20I-485%20U%20Sec.%20245(m)(1)%20of%20the%20INA/Decisions_Issued_in_2022/JUN082022_01A6245.pdf


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.